This Partner Agreement (“Agreement”) is entered into as of ________________________ (“Effective Date”) between NAV Accounting Solutions, LLC (“NAS”) and _________________________________________________ (“Partner”) with PartnerSource Business Center Account Number _______________.
1. Background and Definitions. NAS is in the business of developing, marketing and licensing the use of proprietary software products (“Products”) that are compatible with Microsoft Dynamics 365 Business Central and Microsoft Dynamics NAV (“System”) and providing related support services. Partner is in the business of, among other things, reselling and/or implementing software systems. NAS is willing to appoint Partner as a non-exclusive distributor of certain software products to End Users under the terms of the End User License Agreement (“EULA”). Partner is willing to accept such appointment under the terms of this Agreement. Partner also desires to develop demand for Products and arrange for licenses of Products to End Users under the terms of this Agreement.
1.1 End User. “End User” means a person or entity that has entered into an End User License Agreement.
1.2 Product(s). “Products” means NAS software products, specifically the Primo Payday App and the NAV Payroll Solution, including any upgrades and updates and all accompanying Documentation.
1.3 Documentation. “Documentation” means Product program documentation, and accompanying End User manuals and other materials describing the use, design, installation, operation and maintenance of the Product, delivered to Partner by NAS.
1.4 Primo Payday App. “Primo Payday App” means the Product that is an integrated payroll application for Microsoft Dynamics 365 Business Central users and is comprised of a package of files, primarily AL code files that are compiled and published as an .app file.
1.5 NAV Payroll Solution. “NAV Payroll Solution” means the Product that is an embedded payroll system for Microsoft NAV versions 2013 – 2018 and is comprised of Microsoft NAV .fob files written in C/AL code and includes, for example, NAV Payroll Solution Product Object Files.
1.6 NAV Payroll Solution Product Object Files. “NAV Payroll Solution Product Object Files” means a Dynamics NAV Object Container file with the FOB file extension that reference objects like tables and pages.
1.7 Support Services. “Support Services” means any Product support services provided to End Users by NAS, including, without limitation, Product implementation services. Any tax filing or depositing services or W-2 services are separate from this definition and are not included as part of this Agreement.
1.8 Configuration(s). “Configuration(s)” means any Product modifications or additions made by a person or entity other than NAS.
1.9 End User License Agreement (EULA). “End User License Agreement” (or “EULA”) means a written agreement between NAS and the End User of the Product pursuant to which NAS grants the End User a license to use the applicable Product (and not to distribute, redistribute, sell, or resell the Product). As of the Effective Date, the Primo Payday App EULA is available at www.PrimoPayday.com and the NAV Payroll Solution EULA is available at www.NAVPayroll.com.
1.10 Primo Payday App Subscription Fee. “Primo Payday App Subscription Fee” means the payment identified by NAS as due for the End User’s license to use the Primo Payday App. The Primo Payday App Subscription Fee will be calculated as of the date that Product is first downloaded, accessed, copied, used, or installed by the End User.
1.11 NAV Payroll Solution Annual Fee. “NAV Payroll Annual Fee” means the payment due to license the NAV Payroll Solution every year and includes the enhancement fee and tax table updates.
2. Partner Authority.
2.1 Grant of Authority. NAS hereby grants to Partner a non-exclusive, non-sublicensable, revocable, non-transferable license during the term of this Agreement, solely for the benefit of End Users, to:
2.1.1 Distribution. Distribute, deliver and install Product and provide Product support services directly to End Users that are not receiving such support services from NAS, to the extent explicitly permitted by NAS;
2.1.2 Demonstration. Use the Product for the purpose of demonstrating the Product’s use to End Users or potential End Users;
2.1.3 Marketing. Reproduce, lawfully display and lawfully distribute marketing literature provided by NAS in connection with promoting and supporting NAS products that are intended by NAS to be promoted using such literature;
2.1.4 Configuration. Create Product Configurations for End Users; and,
2.1.5 Internal Usage. Use the Product for Partner’s own internal use for training Partner’s personnel for the purpose of demonstrating the Product to potential End Users.
2.2 Reservation of Rights. No authority, right, or license is granted to Partner except to the extent explicitly stated in Section 2.1. For the avoidance of doubt, no use rights are granted in respect of the Products except to the extent explicitly stated in Sections 2.1.2 and 2.1.5. Partner will not, nor will Partner permit any third party to: (1) Reproduce, copy, modify, translate, create derivative works of, decompile, disassemble, reverse-engineer, sell, market, trade, redistribute, lease, lend, or resell the Products, except to the extent of any authority granted to Partner to do so in this Agreement; (2) Provide Product access to any third party except to the extent of any authority granted to Partner to do so in this Agreement; or (3) Use the Products in a manner contrary to applicable law.
2.3 Configuration. Partner is solely responsible for and accepts all liability for any losses, liabilities, risks, damages, costs, expenses, and adverse effects related to any Configurations that Partner creates or provides to End Users.
3. NAS’s Obligations.
3.1 Product Support. Support Services shall be available to Partner (for resale to End User) during NAS’s normal business hours and shall be provided by NAS as agreed in writing by NAS and Partner and for an hourly fee described in this Agreement (See Addendum A for Primo Payday App Pricing and Addendum B for NAV Payroll Solution Pricing). NAS will bill Partner directly for Support Services delivered to Partner for End Users, and such amounts shall be due from and payable to NAS by Partner.
3.2 Product Updates. During the term of this Agreement, NAS shall provide or make available to Partner any Product updates and enhancements after they are developed and tested and generally released. These updates and enhancements will be provided to the Partner in the unmodified latest standard version of the Product. NAS may make changes to the Products or cease distribution or delivery of the Products, anytime.
3.3 NAS Expenses. NAS is solely responsible for any cost or expenses incurred by NAS in the performance of its obligations under this Agreement.
4. Partner’s Obligations.
4.1 Product Promotion. Partner agrees to use its best efforts toward the promotion and distribution of the Product to End Users in accordance with this Agreement. Partner may use any marketing materials made available by NAS to do so, subject to this Agreement. Partner must submit any proposed revisions or new versions of Product marketing materials to NAS prior to distribution, and Partner shall not distribute any such revisions or versions without NAS’s prior written approval in each case. Partner must attach all NAS copyright notices to any revised marketing materials and assume all related productions costs.
4.2 End-User Licensing Agreement. Partner shall ensure that each End User enters into the applicable EULA before the End User downloads, accesses, copies, uses, or installs the Product. Without limiting any rights or remedies to which NAS may be entitled at law or in equity, in the event Partner breaches the immediately preceding sentence with respect to a particular End User and the End User undertakes an act or omission that, had the applicable EULA been entered into, would be a breach of the EULA, Partner shall be responsible and liable for such act or omission as if the act or omission was subject to the EULA. If Partner discovers any breach of a EULA, Partner shall immediately notify NAS and shall, only upon NAS’s request, take such timely and commercially reasonable corrective action at Partner’s expense to remedy the breach as are directed by NAS. The execution of these duties by Partner shall not preclude NAS from also taking corrective action approved by NAS in writing in advance.
4.3 Product Pricing. Pricing of Product and Product support to End Users shall be at the discretion of Partner. Partner may set prices and discounts at which Partner offers Product and Product support to End Users. Partner may establish payment terms and conditions with Partner’s End Users. Nothing in this Section 4.3 shall limit Partner’s obligations under this Agreement, including any payment obligations set forth in this Agreement. For clarity, Partner will be solely responsible for payment for Support Services by the End User, regardless of when or whether Partner is paid by End User, and any delays or non-payment shall be the sole and exclusive responsibility and liability of Partner.
4.4 Product Protection. Partner will take necessary action with its employees and independent contractors to protect the Products from unauthorized use and disclosure. These obligations survive termination or expiration of this Agreement. NAS will be permitted to seek any remedies available at law or in equity in an event of a breach of these obligations. Partner shall act in good faith and not knowingly take any actions that are adverse to NAS’s best interests or which might damage the reputation of NAS or the Products.
4.5 Partner Expenses. Partner is solely responsible for any cost or expenses incurred by Partner in the performance of its obligations under this Agreement. Partner shall distribute and deliver the Products, as an independent distributor and subject to the terms of this Agreement, at its own risk and expense.
4.6 Compliance with Laws. Partner shall comply with all laws (including all rules, ordinances, decrees and regulations) applicable to its activities under this Agreement. Partner shall indemnify NAS for any liabilities, losses, obligations, costs, expenses, injury and damage suffered or incurred by NAS as a result of Partner’s failure to comply with applicable laws.
4.7 Access to End User Development Environment. Partner shall provide NAS with the necessary credentials to log into the End User’s development environment no later than the first day of the End User’s Product implementation date.
4.8 Customer References. Partner hereby authorizes NAS to use at least two (2) End Users as customer references for the Product once the Product has been implemented for at least two (2) of Partner’s End Users.
4.9 Certification. Partner shall at all times be a certified Microsoft Dynamics 365 Business Central and/or Microsoft Dynamics NAV reseller who maintains a current and valid agreement with Microsoft for the resale or distribution of Microsoft products.
4.10. Non-Exclusivity. NAS reserves the right to make direct sales and to appoint other distributors or resellers of products or services in any location and to contract directly with present and future distributors, resellers, and End Users.
4.11. Audit. Upon NAS request and subject to reasonable advance notice, Partner shall provide NAS or its designee with access to any books, computers, records, or other information that relate or may relate to Partner’s performance under this Agreement as NAS may request to show compliance with this Agreement. Such audit will not unreasonably interfere with Partner’s business activities. If an audit reveals any breach by Partner of this Agreement, Partner will promptly reimburse NAS for its costs of the audit.
5. Warranties and Liabilities.
5.1 End User Warranty. NAS’s warranties with respect to NAS Products shall run directly from NAS to the End User according to the EULA.
5.2 DISCLAIMER. UNLESS EXPRESSLY STATED IN THIS AGREEMENT, TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, NAS DISCLAIMS AND EXCLUDES ALL, AND MAKES NO, REPRESENTATIONS, CONDITIONS, AND WARRANTIES RELATED TO THE PRODUCT, ANY SERVICES, OR THE SUBJECT MATTER OF THIS AGREEMENT, WHETHER EXPRESS OR IMPLIED, ORAL OR WRITTEN, OR ARISING FROM COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE IN TRADE, OR OTHERWISE, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, SYSTEMS INTEGRATION, OR NON-INFRINGEMENT. DUE TO THE COMPLEX NATURE OF THE PRODUCT, PARTNER RECOGNIZES THAT ERRORS AND INTERRUPTIONS MAY ARISE AND THAT NAS DOES NOT REPRESENT OR WARRANT THAT THE PRODUCTS WILL OPERATE WITHOUT ERROR OR INTERRUPTION. NAS MAKES NO REPRESENTATION OR WARRANTY THAT PRODUCT WILL FUNCTION CORRECTLY IN CONNECTION WITH ANY PARTNER CONFIGURATIONS OR THAT SUCH CONFIGURATIONS WILL CONTINUE TO FUNCTION PROPERLY WITH SUBSEQUENT VERSIONS OF THE PRODUCTS.
5.3 LIMITATIONS ON LIABILITY.
5.3.1. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NEITHER NAS NOR ANY OF ITS AFFILIATES, MEMBERS, EMPLOYEES, AFFILIATES, SUPPLIERS, SUCCESSORS OR ASSIGNS SHALL IN ANY EVENT BE LIABLE FOR ANY LOST PROFITS, BUSINESS, GOODWILL, OR REVENUE, BUSINESS INTERRUPTION, LOSS OF DATA OR USE, SUBSTITUTE GOODS OR SERVICES, OR ANY SPECIAL, INCIDENTAL, INDIRECT, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES OF ANY KIND, WHETHER FORESEEABLE OR UNFORESEEABLE, WHICH MAY ARISE OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR ANY PRODUCTS OR SERVICES, REGARDLESS OF WHETHER EITHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OR LIKELIHOOD OF SUCH DAMAGES, EVEN IF THE EXCLUSIVE REMEDIES PROVIDED BY THIS AGREEMENT FAIL OF THEIR ESSENTIAL PURPOSE. THESE LIMITATIONS APPLY IRRESPECTIVE OF WHETHER SUCH LIABILITY IS BASED IN TORT, CONTRACT, WARRANTY, NEGLIGENCE, STRICT LIABILITY OR ANY OTHER THEORY.
5.3.2. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, AND REGARDLESS OF WHETHER THE LIABILITY IS BASED IN TORT, CONTRACT, WARRANTY, NEGLIGENCE, STRICT LIABILITY OR ANY OTHER THEORY, IN NO EVENT SHALL THE TOTAL CUMULATIVE LIABILITY OF NAS AND ITS AFFILIATES, MEMBERS, EMPLOYEES, AFFILIATES, SUCCESSORS AND ASSIGNS) WHICH MAY ARISE OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR ANY PRODUCTS OR SERVICES EXCEED THE AMOUNTS ACTUALLY PAID BY PARTNER TO NAS IN THE ONE (1) YEAR PERIOD IMMEDIATELY PRIOR TO THE DATE THE LIABILITY AROSE.
5.4 Force Majeure. NAS (or any person acting on its behalf) shall not be liable or responsible for failure to fulfill any obligation under this Agreement so long as and to the extent to which the fulfillment of such obligation is prevented, frustrated, hindered or delayed as a consequence of circumstances beyond NAS’s reasonable control. In the event of any such delay, NAS will notify Partner of the nature and extent of any such condition and use due diligence to remove any such causes and resume performance under this Agreement as soon as reasonably practicable.
5.5 Limitation on Actions. No action, regardless of form, arising under or relating to this Agreement, may be brought by either party more than one (1) year after the cause of action has accrued, except that an action for non-payment may be brought by a party not later than two (2) years after the date the last payment was due.
5.6 Indemnification.
5.6.1. By NAS. NAS agrees to indemnify and hold harmless Partner from and against any and all third party claims, damages, losses, costs, liabilities, and expenses (including reasonable attorney’s fees) to the extent based on an allegation that the Product, when used or distributed as authorized by this Agreement, breaches any of the representations and warranties stated in this Agreement, provided: (1) Partner promptly gives written notice of any such claim to NAS; (2) Partner provides any assistance (at NAS’s expense) which NAS may reasonably request for the defense of the claim; and (3) NAS has the right to control the defense or settlement of the claim (but may not settle or compromise such claim without the prior written consent of Partner, which consent will not be withheld or delayed unreasonably).. NAS shall not be required to indemnify Partner to the extent the claim would not have occurred but for Partner’s negligent or wrongful act or omission.
5.6.2. By Partner. Partner agrees to indemnify and hold harmless NAS from and against any and all third party claims, losses, costs, damages, liabilities, and expenses (including reasonable attorney’s fees) to the extent arising out of any breach of this Agreement by Partner or any dispute between Partner and an End User, provided: (1) NAS promptly gives written notice of any such claim to Partner; (2) NAS provides any assistance (at Partner’s expense) which Partner may reasonably request for the defense of the claim; and (3) Partner has the right to control the defense or settlement of the claim (but may not settle or compromise such claim without the prior written consent of NAS, which consent will not be withheld or delayed unreasonably). Partner shall not be required to indemnify NAS to the extent the claim would not have occurred but for NAS’s negligent or wrongful act or omission.
5.7 Local Laws. Partner will inform NAS of any local law requirements related to the Products or marketing material and applicable to NAS, in which case the parties will agree on any necessary modifications to this Agreement to comply with local law.
6. Payment Terms and Taxes.
6.1 Payment of Primo Payday App Subscription Fees. Partner shall pay NAS a Payday App Subscription Fee for each End User that downloads, accesses, copies, uses, or installs the Primo Payday App (or for whose benefit such is done). Subscriber. NAS will invoice Partner the Primo Payday App Subscription Fee calculated as of the date that Product is first downloaded, accessed, copied, used, or installed by or for the End User. Payment is due based on the terms of the invoice issued by NAS to Partner. All payments are due in U.S. Dollars. Payment is due NAS regardless of when or whether Partner is paid the Payday App Subscription Fee by End User. Partner shall be solely responsible for invoicing and collecting End User Payday App Subscription Fee payments and shall bear the entire risk of collection and non-payment. Partner will bear all banking and other fees and charges imposed by Partner’s banking institutions in connection with its invoicing and collection of Payday App Subscription Fee amounts and otherwise. If Partner’s payment is not received within sixty (60) days of the invoiced due date, NAS shall be entitled to charge interest on the sum overdue until payment is made. Interest will be calculated on a daily basis at the rate of one (1) percent per month or, if less, the maximum rate allowed by applicable law.
6.2 Payment of NAV Payroll Solution Software Fees and NAV Payroll Solution Annual Fees. Partner shall pay NAS the NAV Payroll Solution Software Fee and the initial NAV Payroll Solution Annual Fee for each End User that downloads, accesses, copies, uses, or installs the Primo Payday App (or for whose benefit such is done). NAS will invoice Partner for the NAV Payroll Solution Software Fee and the initial NAV Payroll Solution Annual Fee, if any, upon any of the following: (1) when NAV Payroll Solution Product Object Files are delivered to Partner and/or End User; (2) when Partner adds Product license range to End User’s license, if applicable; (3) when NAV Payroll Solution Product Object Files are installed in End User’s database. Payment is due based upon the terms of the invoice issued by NAS to Partner. Payment is due in U.S. Dollars. Payment is due NAS regardless of when or whether Partner is paid by End User. Partner shall be solely responsible for invoicing and collecting End User payments of NAV Payroll Solution Software Fees and the initial NAV Payroll Solution Annual Fees and shall bear the entire risk of collection and non-payment. Partner will bear all banking and other fees and charges imposed by Partner’s banking institutions in connection with its invoicing and collection of fees and otherwise. If Partner’s payment is not received within sixty (60) days of the invoiced due date, NAS shall be entitled to charge interest on the sum overdue until payment is made. Interest will be calculated on a daily basis at the rate of one (1) percent per month or, if less, the maximum rate allowed by applicable law.
6.3 Taxes. The payments due NAS hereunder do not include any and all present and future taxes. Partner is responsible for paying all applicable taxes, including but not limited to sales, excise, use, withholding or export and import.
6.4 Partner Discounts for the Primo Payday App. NAS shall be permitted to make changes to the pricing described in Addendum A after giving Partner written notice ninety (90) days prior to any such change. Revisions shall be effective for deliveries of licenses after the ninety (90) day notice period. NAS may offer promotional prices with a stated expiration date at any time.
6.5 Partner Discounts for the NAV Payroll Solution. NAS shall be permitted to make changes to the programs described in Addendum A & B after giving Partner written notice ninety (90) days prior to any such change. Revisions shall be effective for deliveries of licenses after the ninety (90) day notice period. NAS may offer promotional prices with a stated expiration date at any time.
7. Terms and Termination.
7.1 Term. This Agreement shall take effect on the Effective Date and shall continue for a term of (1) one year, unless terminated earlier as provided by this Agreement. Thereafter, this Agreement will automatically renew for successive one (1) year terms unless terminated by either party with no less than thirty (30) day written notice prior to the end of the initial or any renewal term.
7.2 Termination for Cause or Other Grounds. Either party may, by written notice to the other party, immediately terminate this Agreement if the other party (1) breaches any material provision of this Agreement and the breach is not remedied within 30 days of the receipt of notice from the first party requiring it to remedy the breach, or (2) becomes insolvent, enters bankruptcy proceedings or attempts to make an assignment for the benefit of creditors.
7.3 Effect of Termination.
7.3.1 Rights. Upon the expiration or termination of this Agreement, all rights granted to Partner hereunder will immediately cease. Such rights include, without limitation, the right to offer or provide Product support to End Users or to otherwise deal with End Users in respect of Products.
7.3.2. Payments. Upon the expiration or termination of this Agreement, Partner will pay all amounts due and outstanding amounts will become immediately payable.
7.3.3 Prior Obligations. In the event of expiration or termination of this Agreement, obligations that require or contemplate performance subsequent to any termination or expiration, either expressly or by reasonable implication, will survive termination or expiration.
7.3.4 End User Licenses. Expiration or termination of this Agreement will not affect any End User licenses entered into by End Users prior to termination. No later than expiration or termination, Partner shall immediately notify each End User with respect to which Partner has exercised any of the rights stated in Section 2.1 or 2.4 or has provided or resold Product support of the expiration or termination of Partner’s rights hereunder and shall deliver to such End Users such contact information as is provided by NAS for the purpose of NAS assisting End Users who have a desire to obtain Product-related services from NAS or another NAS partner or reseller.
8. Payment of Primo Payday App Subscription Fees, NAV Payroll Solution Annual Fees and Support Services Fees. NAS will apply payment to overdue invoices in the order that the invoices were issued or, in NAS’s discretion, in the order of the date NAS provided the rights, authority, or licenses identified in the invoices. NAS reserves the right to terminate this Agreement for failure to timely pay Primo Payday Subscription Fees, NAV Payroll Solution Annual Fees and/or Support Services fees which NAS may do immediately upon written notice to Partner.
9. Relationship of the Parties. Partner acknowledges and agrees that its relationship with NAS is that of an independent contractor, and Partner will not act in a manner that expresses or implies a relationship other than that of an independent contractor. This Agreement does not constitute either party an agent, employee, joint venture or legal representative of the other party. Neither party shall have any authority to make any representations, warranties, or commitments in the name of or on behalf of the other in any way.
10. Assignment. Neither this Agreement nor any rights or obligations of Partner hereunder shall be assigned, subcontracted, or transferred by Partner, in whole or in part, by operation of law or otherwise, without the prior written consent of NAS. Any prohibited assignment shall be null and void and considered a material breach of this Agreement. For purposes of this section, any change of ownership of a controlling interest in Partner or its assets, whether by merger, consolidation, reorganization or otherwise, shall be considered to be an assignment.
11. Amendment. This Agreement shall not be considered modified or amended, in whole or part, except by written amendment signed by an authorized representative of both parties. No provision hereof shall be deemed waived unless such waiver is in writing and signed by both parties.
12. Ownership. All rights, title and interest in and to the Products and associated promotional materials, and all ideas, methods, algorithms, formulae, processes, and concepts used in developing or incorporated into the Product, and all updates and upgrades, and all other improvements, revisions, supplements, add-on components, corrections, bug-fixes, hot-fixes, patches, modifications, enhancements, and releases in, of, or to the Product, and all derivative works based upon any of the foregoing, and all copies of the foregoing (“NAS IP”), including without limitation all copyrights, patent rights, trademark and service mark rights, trade secret rights and other intellectual property rights therein and thereto, are and will remain the sole and exclusive property of NAS, and NAS IP may only be used by Partner as expressly permitted by this Agreement. As between NAS and Partner, NAS owns any and all trademarks, trade names, and service marks for or related to the Products, as well as any and all goodwill associated therewith or related thereto; any and all use of such trademarks, trade names, and service marks will inure exclusively to the benefit of NAS. Partner shall not remove, alter, obscure, or otherwise modify any copyright, trademark or other notices of proprietary interest contained in the Products or any other NAS IP. NAS reserves all rights not expressly granted to Partner pursuant to this Agreement. This Agreement is not an agreement of sale, and no title, intellectual property rights, or ownership rights to the Products are transferred to Partner pursuant to this Agreement. Upon termination or expiration of this Agreement, Partner shall promptly return or destroy all NAS IP in Partner’s possession or under its control.
13. Export Restrictions. Partner will not export the Products or any copies thereof except in compliance with all relevant laws that apply.
14. Confidentiality. The parties agree to hold each other's Confidential Information in strict confidence. The parties agree not to make each other's Confidential Information available in any form to any third party (other than those who have a need to know such Confidential Information and are bound by confidentiality obligations no less stringent than those set forth herein) or to use each other's Confidential Information for any purpose other than to exercise its rights or perform its obligations under this Agreement. Each party's Confidential Information shall remain the sole and exclusive property of that party. The parties agree that in the event of the use or disclosure by the other party, other than as specifically provided for in this Agreement, the non-disclosing party may be entitled to equitable relief. “Confidential Information” means: (1) written, printed, or electronically recorded materials furnished by NAS, including any Documentation and other materials describing the use, design, installation, operation and maintenance of the Product; (2) the Products and any other software products provided, developed, or owned by NAS, including any subsequent updates or upgrades; (3) any written or tangible information stamped “confidential,” “proprietary,” or with a similar legend, or any information that NAS makes reasonable efforts to maintain the secrecy of or that a reasonable person would likely consider to be NAS’s confidential information; (4) business or marketing plans or strategies, customer lists, operating procedures, trade secrets, design formulas and improvements of any kind, sales projections, and pricing information; (5) any information belonging to End Users about whom Partner gained knowledge as a result of rights granted to Partner under this Agreement.
15. Governing Law. This Agreement and all disputes arising out of or relating to this Agreement or its subject matter shall be governed by and interpreted and construed in accordance with the laws of the State of Texas, USA, conflicts of law excluded. Any legal action or proceeding arising out of or relating to this Agreement or its subject matter may be brought and resolved only in the state and federal courts located in the State of Texas, County of Tarrant, and the courts of appeal therefrom. The Uniform Computer Information Transaction Act or any version thereof adopted by any state in any form will not apply to this Agreement and, to the extent that such is otherwise applicable, the parties hereby opt-out of the applicability thereof pursuant to the opt-out provisions(s) contained therein. The U.N. Convention on the International Sale of Goods shall not apply to this Agreement or the rights or duties hereunder.
16. Validity and Severability. If any provision of this Agreement is held to be illegal, invalid or unenforceable, then such provision will be deemed restated to reflect the original intention of the parties as nearly as possible in accordance with applicable law and the other provisions shall continue in full force and effect.
17. Entire Agreement. This Agreement (including any addenda or amendments) constitutes the entire agreement and understanding of the parties with respect to its subject matter and supersedes all oral communication and prior writings with respect thereto.