MDN Reseller Agreement

The unfortunate but necessary “fine print” to protect both of us! Please read the terms and conditions below. By enrolling in MDN’s reseller program you, by default, agree to these terms and conditions.

This Reseller Agreement (the “Agreement”) is made and entered into as of November 30th (the “Effective Date”) between Marcellus Drilling News, LLC (MDN), a Limited Liability Company having principal offices at PO Box 358, Kirkwood, NY 13795, and Select Analytics, LLC a Limited Liability Company having a principle offices at 7 Orchard Terrace, Monroe, NY (together the “Company”), and your company (“Reseller”).

WHEREAS, Company is the provider of certain products embodied in the Products described further herein; and

WHEREAS, Reseller wishes to be appointed a reseller of some or all of the Products and Company is willing to make such appointment on the terms contained herein;

NOW, THEREFORE, Company and Reseller hereby agree, for and in consideration of the mutual covenants in this Agreement and for other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, as follows:

1. Definitions. The following definitions apply to capitalized terms in this Agreement. All other capitalized terms are defined in the body of the Agreement.

1.1. “Confidential Information” means all proprietary information disclosed by one party to the other party including (without limitation)

(a) proprietary product-related technology, ideas and algorithms;

(b) trade secrets;

(c) either party’s technical, business or financial information and plans;

(d) the terms of this Agreement; and

(e) any item marked as confidential by the disclosing party.

1.2. “Documentation” means any user documentation, on any media, provided by Company for use with the product.

1.3. “End User” means any person or entity that purchases a Product or Products solely for its own internal use.

1.4. “Product” means The Marcellus & Utica Shale Databook

1.5. “Products” means more than Product (either several different types of Product or more than one of the same type of Product, or both).

1.6. “Software” shall mean software products and software or firmware incorporated in Products.

1.7. “Territory” means the Reseller’s market area. Both parties may discuss in good faith and agree to expand the Territory to other areas if it is applicable based on terms and conditions agreed by both Company and Reseller.

2. Appointment of Reseller

2.1. Authorization and Appointment. Company hereby authorizes and appoints Reseller and Reseller accepts the appointment, as a non-exclusive reseller to market Company Products to End Users in the Territory.

2.2. Restrictions on Appointment. Reseller’s authorization from Company to resell Company Products is limited to the Territory. Additional sales locations must be pre-approved by Company.

2.3. Revision of Authorization. Company reserves the right to revise the list of Products and End User Services at any time during the term of this Agreement. Company will notify Reseller of such revisions.

3. Price and Payment

3.1. Product Prices. The Company will determine and set Product price. Company may, change the price for any or all Products not yet ordered.

3.2. Payment. All fees payable hereunder shall be paid within thirty (30) days of the date of product publication. Payment shall be made in via interbank transfer to Reseller‘s account at a bank designated by Reseller. The Company will pay the Reseller 25% of product price.

3.3. Taxes. Reseller shall bear and be responsible for the payment of all taxes associated with payments received from the Company as a result of product sale(s).

4. Orders

4.1. Purchase Orders. All orders for the Products originated by Reseller shall be transacted solely through the Company’s e-commerce ordering system. The ordering system will exist on the Marcellus Drilling News (MDN) website, Marcellusdrilling.com. Purchase Orders originating from the Reseller’s marketing efforts will be tracked by the MDN order tracking system. This system will identify orders originating from the Reseller’s marketing efforts, and will serve as the basis for Reseller’s payments.

The MDN order tracking system will contain the following:

(a) Each Product ordered by Reseller’s customer,

(b) quantity requested;

(c) unit Price;

(d) Reseller’s customer name, company, and email address;

4.2. Acceptance. Company shall, within seven (7) business days of receipt of the Purchase Order from Reseller, communicate via email its acceptance of the said Purchase

4.3. Cancellation. Company has the right to cancel any Purchase Order without any liability to Reseller.

4.4. Purchase Refunds. Company may refund a purchaser’s payment if deemed necessary. Any refunded sale will negate payment required to Reseller. Any refunds are at the sole discretion of the Company.

5. Shipment and Delivery

5.1. Delivery. Company shall deliver the Products directly to the purchasers via existing MDN e-commerce system.

5.2. Cost of Delivery. Company shall be responsible for all e-commerce delivery costs upon delivery of Product, including e-commerce surcharges of or about 2.5% of product purchase price.

5.3. Failure or Delay in Delivery. Company shall make commercially reasonable efforts to meet the estimated delivery date and or delivery date specified in the Purchase Order, but shall not be liable for failure to deliver or for any delay or effort in delivery of Product. In case Company cannot meet the estimated delivery date and or delivery date specified in the Purchase Order, Company shall promptly notify Reseller, and discuss in good faith on the appropriate delivery date.

5.4. Shipment. Company shall ship Product directly Purchaser to Customer’s email address specified via MDN’s e-commerce platform.

6. Reseller Responsibility

6.1. Marketing. Reseller shall use its best efforts to market, advertise, and otherwise promote and sell the Product in the Territory, including website advertisement, trade show attendance, and social media campaigns.

6.2. Cooperation. Reseller agrees to work closely with Company and use its best efforts to meet the sales goals mutually agreed between Reseller and Company.

6.3 Customer Contact Sharing. Reseller acknowledges sales of the Product will result in a shared customer list, which the Company can use to promote any and all other products, with the format of which shall be mutually agreed upon in the inception of new products.

6.4. Purchaser Product License Agreement. Upon purchase of the product Company shall provide each Purchaser with use terms and conditions of Company’s Product and Disclaimer

6.5. Purchaser Information. Reseller agrees to provide the name and address of Purchasers as requested by Company on an as needed basis.

6.6. Records and Reports. Company shall maintain records of its marketing, sales, and support and maintenance services activities under the Term of this Agreement. Company shall provide Reseller with reports describing Reseller’s sales of Product in the Territory, including the number of Product sold, the dates and customer names.

7. Support. Company shall be responsible for all first level of support for the Purchasers (e.g., problem identification and problem resolution) and shall include all relevant contact information on Company‘s website. Reseller agrees to direct all customer inquiries to Company .

8. Warranty

8.1. Company warrants solely for the benefit of Reseller that the Service will materially conform to the Documentation. This warranty does not apply to any damage resulting from unauthorized use or negligence on the part of the Purchaser. THIS SECTION SETS FORTH COMPANY’S SOLE OBLIGATION, AND RESELLER’S SOLE AND EXCLUSIVE REMEDY, FOR A BREACH OF THE WARRANTY IN THIS SECTION.

8.2. EXCEPT AS PROVIDED HEREIN, THE PRODUCT IS PROVIDED ON AN “AS IS” BASIS WITHOUT WARRANTY OF ANY KIND. COMPANY EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, REGARDING THE SERVICE, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT, AND IMPLIED WARRANTIES ARISING FROM A COURSE OF DEALING OR COURSE OF PERFORMANCE. COMPANY DOES NOT WARRANT THAT THE PRODUCT WILL OPERATE UNINTERRUPTED OR BE ERROR-FREE, OR THAT ALL DEFECTS WILL BE CORRECTED.

9. Confidential Information. Each party shall protect the other’s Confidential Information from unauthorized dissemination and use the same degree of care that such party uses to protect its own like information. Neither party shall disclose to third parties the other’s Confidential Information without the prior written consent of the other party. Neither party shall use the other’s Confidential Information for purposes other than those necessary to directly further the purposes of this Agreement. Each employee or agent of Reseller, performing duties hereunder, shall be made aware of this Agreement and shall execute a document that binds said employee or agent of Reseller to the same level of confidentiality contained herein.

10. Ownership of Intellectual Property. Reseller hereby agrees and acknowledges that Company, its suppliers, partners and licensors (if any), own and shall retain all right, title and interest in and to (a) the manufacture and/or production of Product (including all copies and derivative works thereof, by whomever produced), and associated Product Documentation, including all intellectual property rights embodied therein; (b) all of the service marks, trademarks, trade names or any other designations, and (c) all copyrights, patent rights, trade secret rights, and other proprietary rights in the Product, and Reseller shall have no rights with respect thereto other than the limited rights expressly set forth in this Agreement.

11. Trademark. Reseller may, whether in connection with its own trademarks, use the then current Product names, logos and other marks (“Marks”) on the Product and all marketing and promotional material therefore as authorized by Company for all proper purposes in the performance of Reseller’s duties hereunder. Reseller’s use of such Marks shall be in accordance with Company’ policies in effect from time to time, including, but not limited to, trademark usage and advertising policies. Reseller shall have no claim or right in such Marks and Reseller shall not make any claim or contest the use of any such Mark authorized by Company. Except as expressly authorized in writing by Company, Reseller shall not file or attempt to register any Mark or any mark confusingly similar thereto.

12. Term and Termination

12.1. Term. This Agreement shall commence on the Effective Date and will remain in full force and effect for an initial term of 6 Months unless earlier terminated under this Agreement.

12.2. [Renewal. The Term may be renewed after the initial 6 Month term as agreed by both parties.

12.3. Termination without Cause. Either party may terminate this Agreement without cause upon sixty (30) days prior written notice to the other party.

12.4. Effects of Termination. Upon any termination or expiration of this Agreement:

(a) Reseller shall cease to be an authorized reseller of Product and all rights and licenses granted to Reseller hereunder shall cease;

(b) Reseller shall immediately:

(i) cease all marketing of the Product;

(ii) discontinue any use of the Marks; and

(iii) cease to promote, solicit or procure orders for the Product.

13. Indemnification

13.1. Indemnity. Reseller shall indemnify and hold Company harmless from and against any and all damages, liabilities, costs and expenses (including reasonable attorney’s fees) which Company incurs as a result of any claim based on any breach of any representation or warranty, covenant or agreement by Reseller under this Agreement or any breach of this Agreement by Reseller.

14. LIMITATION OF LIABILITY. COMPANY WILL NOT BE LIABLE UNDER ANY SECTION OF THIS AGREEMENT OR UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING WITHOUT LIMITATION LOST PROFITS, LOST REPUTATIONS), WHETHER OR NOT IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS IN ADVANCE. THIS EXCLUSION INCLUDES ANY LIABILITY THAT MAY ARISE OUT OF THIRD PARTY CLAIMS AGAINST THE OTHER PARTY.

15. General Provision

15.1. Notice. Any notices required or permitted shall be given to the Company at the address specified above, or at such other address as the Company shall specify in writing.

15.2. Assignment. The Reseller may not assign this agreement or any right or obligation of this agreement, by operation of law or otherwise without prior written consent of the Company.

15.3. Independent Contractors. The parties are independent contractors, and no agency, partnership, joint venture or employee-employer relationship is created by this Agreement.

15.4. Severability. The invalidity or unenforceability of any provisions of this Agreement shall not affect the validity or enforceability of any other provision of this Agreement, which shall remain in full force and effect.

15.5. Amendments. No change or modification of this Agreement will be valid unless it is in writing and signed by each party to this Agreement.

15.6. Governing law. This Agreement shall be governed, construed, and enforced in accordance with the laws of the State of New York without regard to its conflict of laws rules.

15.7. Jurisdiction. The parties submit all their disputes arising out of or in connection with this Agreement to the exclusive jurisdiction of the Courts of Orange County, New York.

15.8. Compliance of Law. The parties shall comply with any and all applicable laws, rules and regulations of the governmental authorities concerned.

15.9. Force Majeure. A party shall not be liable for any failure of or delay in the performance of this Agreement for the period that such failure or delay is due to causes beyond its reasonable control, including but not limited to acts of God, war, strikes or labor disputes, embargoes, government orders or any other force majeure event. In the event of a threatened default or default as a result of any of the above causes, the defaulting party shall exercise its best efforts to avoid and cure such default. In the event such an event prevents performance thereunder for a period in excess of thirty (30) days, then the non-defaulting party may elect to terminate this Agreement and/or cancel or suspend any Purchase Orders thereunder by a written notice to the defaulting party.

15.10. Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed to be an original, but all of which, taken together, shall constitute one and the same agreement.

15.11. Entire Agreement. This Agreement constitutes the entire agreement between the parties with respect to its subject matter and constitutes and supersedes all prior agreements, representations and understandings of the parties, written or oral.

YOU AGREE to these terms and conditions by enrolling in the reseller program.

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