OEM / WHITE-LABEL AGREEMENT

STATE OF NEW MEXICO

THIS OEM / WHITE-LABEL AGREEMENT (this "Agreement") is entered into as of [__/__/____] (the "Effective Date") by and between:

SUPPLIER:
Name: [________________________________]
State of Organization: [________________________________]
Principal Place of Business: [________________________________]
Contact Person: [________________________________]
Email: [________________________________]
Phone: [________________________________]
(hereinafter referred to as "Supplier")

AND

OEM PARTNER / RESELLER:
Name: [________________________________]
State of Organization: [________________________________]
Principal Place of Business: [________________________________]
Contact Person: [________________________________]
Email: [________________________________]
Phone: [________________________________]
(hereinafter referred to as "Partner")

Supplier and Partner are each referred to herein individually as a "Party" and collectively as the "Parties."

RECITALS

WHEREAS, Supplier is in the business of designing, developing, manufacturing, and/or providing certain products and/or services more particularly described in Schedule A attached hereto;

WHEREAS, Partner desires to obtain the right to rebrand, market, distribute, and sell such products and/or services under Partner's own trade names and trademarks pursuant to an OEM / white-label arrangement;

WHEREAS, the Parties intend this Agreement to be governed by the laws of the State of New Mexico, including the New Mexico Uniform Commercial Code (NMSA Chapter 55, Article 2) to the extent applicable to the sale of goods;

WHEREAS, the Parties acknowledge that this Agreement involves the exchange of proprietary information protected under the New Mexico Uniform Trade Secrets Act (NMSA §§ 57-3A-1 through 57-3A-7);

WHEREAS, the Parties further acknowledge their obligations under the New Mexico Data Breach Notification Act (NMSA §§ 57-12C-1 through 57-12C-12) with respect to any personal information processed in connection with this Agreement;

NOW, THEREFORE, in consideration of the mutual covenants, promises, and agreements contained herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:

TABLE OF CONTENTS

1. Definitions
2. Grant of Rights and License
3. Product and Service Specifications; Quality Standards
4. Branding and Trademark Usage
5. Pricing, Payment Terms, and Minimum Orders
6. Intellectual Property Ownership and Licensing
7. Warranties
8. Limitation of Liability
9. Indemnification
10. Confidentiality and Trade Secrets
11. Data Protection and Breach Notification
12. Term, Termination, and Transition Assistance
13. Insurance Requirements
14. Dispute Resolution
15. Force Majeure
16. General Provisions
17. Signature Blocks
18. Schedules and Exhibits

1. DEFINITIONS

As used in this Agreement, the following terms shall have the meanings set forth below:

1.1 "Branded Products" means the Products that have been rebranded, repackaged, or relabeled by Partner in accordance with the Branding Guidelines set forth in Schedule C and the terms of this Agreement, for distribution and sale under Partner's Marks.

1.2 "Confidential Information" means all non-public information disclosed by either Party to the other Party, whether orally, in writing, electronically, or by inspection, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Confidential Information includes, without limitation, trade secrets (as defined under NMSA § 57-3A-2), business plans, customer lists, pricing information, technical data, product designs, software source code, algorithms, financial information, marketing strategies, and the terms and conditions of this Agreement.

1.3 "Deliverables" means the Products and any associated documentation, training materials, marketing collateral templates, software, updates, patches, and other materials provided by Supplier to Partner under this Agreement.

1.4 "End Customer" means any third-party individual or entity that purchases or licenses a Branded Product from Partner.

1.5 "Intellectual Property" or "IP" means all patents, copyrights, trademarks, service marks, trade dress, trade secrets, know-how, inventions (whether or not patentable), domain names, moral rights, and all other intellectual property rights, whether registered or unregistered, and all applications, registrations, renewals, and extensions thereof.

1.6 "Marks" means the trademarks, service marks, trade names, logos, and other branding elements of each respective Party.

1.7 "Minimum Order Quantity" or "MOQ" means the minimum quantity of Products that Partner is required to order during each contract period, as specified in Schedule A.

1.8 "Personal Identifying Information" means an individual's first name or first initial and last name in combination with one or more of the data elements enumerated in NMSA § 57-12C-2, when the data element is not encrypted, redacted, or otherwise rendered unreadable.

1.9 "Products" means the goods, software, or services described in Schedule A that Supplier provides to Partner for white-label distribution under this Agreement.

1.10 "Specifications" means the technical requirements, performance standards, quality standards, and other specifications for the Products as set forth in Schedule A and any associated documentation.

1.11 "Territory" means the geographic area(s) or market segment(s) in which Partner is authorized to distribute Branded Products, as specified in Section 2.

1.12 "Unfair Practice" means any unconscionable trade practice, deception, fraud, or misrepresentation as defined in the New Mexico Unfair Practices Act (NMSA §§ 57-12-1 et seq.).

2. GRANT OF RIGHTS AND LICENSE

2.1 Appointment. Subject to the terms and conditions of this Agreement, Supplier hereby appoints Partner, and Partner accepts such appointment, as a:

☐ Non-exclusive OEM partner/reseller
☐ Exclusive OEM partner/reseller (subject to Section 2.3)

for the marketing, distribution, and sale of Branded Products within the Territory.

2.2 Territory. The Territory shall be: [________________________________]

Market segment(s), if applicable: [________________________________]

2.3 Exclusivity. If Partner's appointment is designated as exclusive:

(a) Supplier shall not appoint any other distributor, reseller, or OEM partner for the Products within the Territory during the term of this Agreement, provided that Partner meets the Minimum Order Quantities and performance milestones set forth in Schedule A.

(b) If Partner fails to meet the Minimum Order Quantities or performance milestones for [____] consecutive quarters, Supplier may, upon [____] days' written notice, convert Partner's appointment from exclusive to non-exclusive.

(c) Supplier reserves the right to sell Products directly to End Customers within the Territory:
☐ Yes, without restriction
☐ Yes, but only to house accounts identified in Schedule A
☐ No

2.4 Scope of White-Label Rights. Partner is authorized to:

(a) Remove Supplier's branding from the Products and replace it with Partner's Marks in accordance with the Branding Guidelines;

(b) Market, promote, distribute, and sell the Branded Products to End Customers within the Territory;

(c) Provide first-tier (Tier 1) customer support to End Customers for the Branded Products;

(d) Create marketing materials, documentation, and collateral for the Branded Products, subject to Supplier's prior written approval;

(e) Sublicense the Products to End Customers solely for their internal business use, under end-user license terms approved by Supplier.

2.5 Restrictions. Partner shall not:

(a) Reverse engineer, disassemble, decompile, or attempt to derive the source code of any software component of the Products, except to the extent expressly permitted by applicable New Mexico law;

(b) Modify the core functionality of the Products without Supplier's prior written consent;

(c) Make any claims, representations, or warranties about the Products that exceed or differ from those authorized by Supplier, including claims that could constitute an unfair or deceptive trade practice under the New Mexico Unfair Practices Act (NMSA §§ 57-12-1 et seq.);

(d) Sell, distribute, or market the Branded Products outside the Territory;

(e) Assign or sublicense any rights granted under this Agreement except as expressly permitted herein;

(f) Use the Products to develop competing products or services.

3. PRODUCT AND SERVICE SPECIFICATIONS; QUALITY STANDARDS

3.1 Specifications. Supplier shall manufacture, produce, or provide the Products in conformity with the Specifications set forth in Schedule A. Any material changes to the Specifications shall require Partner's prior written consent, which shall not be unreasonably withheld.

3.2 Quality Standards. Supplier shall maintain quality management systems and processes sufficient to ensure that all Products:

(a) Conform to the Specifications and documentation;

(b) Are free from material defects in materials and workmanship;

(c) Comply with all applicable federal, state (including New Mexico), and local laws, regulations, and industry standards;

(d) Meet or exceed the quality standards set forth in Schedule A.

3.3 Quality Audits. Partner shall have the right, upon [____] days' prior written notice, to conduct quality audits of Supplier's manufacturing or development facilities no more than [____] times per calendar year. Supplier shall cooperate fully with such audits.

3.4 Samples and Testing. Supplier shall provide Partner with product samples for quality testing and approval prior to initial delivery and upon any material change to the Products or manufacturing process. Partner shall have [____] business days to approve or reject samples.

3.5 Nonconforming Products. If any Products fail to conform to the Specifications or quality standards:

(a) Partner shall notify Supplier in writing within [____] days of discovery of the nonconformity;

(b) Supplier shall, at its expense, repair, replace, or refund the purchase price of nonconforming Products within [____] days of receipt of notice;

(c) Supplier shall conduct a root-cause analysis and implement corrective actions to prevent recurrence.

3.6 Regulatory Compliance. Supplier represents and warrants that the Products comply with all applicable federal and New Mexico regulatory requirements, including product safety, labeling, and environmental requirements.

4. BRANDING AND TRADEMARK USAGE

4.1 Branding Guidelines. Partner shall rebrand the Products in accordance with the Branding Guidelines set forth in Schedule C. The Branding Guidelines shall specify:

(a) Approved locations and methods for applying Partner's Marks to the Products;

(b) Required "powered by" or attribution notices, if any;

(c) Prohibited modifications to the Products' user interface, packaging, or labeling;

(d) Quality standards for reproduction of Marks.

4.2 Trademark License. Each Party grants the other a limited, non-exclusive, non-transferable, royalty-free license to use its Marks solely in connection with the performance of this Agreement, subject to the Branding Guidelines.

4.3 Trademark Ownership. Each Party retains all right, title, and interest in and to its own Marks. Neither Party shall acquire any ownership rights in the other Party's Marks by virtue of this Agreement.

4.4 Quality Control. Partner shall ensure that the quality of the Branded Products and any marketing materials bearing Supplier's Marks (if applicable) meet the standards established by Supplier. Supplier shall have the right to review and approve any use of its Marks by Partner.

4.5 Unfair Practices Act Compliance. Partner shall not use any Marks or make any product claims in a manner that constitutes an unfair or deceptive trade practice under the New Mexico Unfair Practices Act (NMSA §§ 57-12-1 et seq.), including false or misleading representations as to the origin, sponsorship, or approval of the Branded Products.

4.6 No Registration. Partner shall not register or attempt to register any of Supplier's Marks or confusingly similar marks in any jurisdiction.

5. PRICING, PAYMENT TERMS, AND MINIMUM ORDERS

5.1 Pricing. The pricing for Products shall be as set forth in Schedule A (the "Price List"). Supplier may adjust pricing upon [____] days' prior written notice, provided that any price increase during the initial term shall not exceed [____]% per annum without Partner's consent.

5.2 Payment Terms. Partner shall pay all invoices within [____] days of the invoice date. Late payments shall bear interest at the lesser of [____]% per month or the maximum rate permitted under New Mexico law.

5.3 Minimum Order Quantities. Partner shall order no fewer than the Minimum Order Quantities specified in Schedule A during each contract period. Failure to meet MOQs for [____] consecutive periods shall constitute a material breach entitling Supplier to the remedies set forth in Section 12.

5.4 Volume Discounts. Partner shall be entitled to volume discounts as set forth in the Price List based on aggregate orders during each [____]-month period.

5.5 Taxes. All prices are exclusive of applicable New Mexico gross receipts tax, compensating tax, and other state and local taxes. Partner shall be responsible for all taxes assessed on the Branded Products (other than taxes assessed on Supplier's income). The Parties acknowledge that New Mexico imposes a gross receipts tax on the seller rather than a traditional sales tax, and pricing shall reflect this structure accordingly.

5.6 Currency. All payments shall be made in United States Dollars (USD) unless otherwise specified in the Price List.

5.7 Forecasting. Partner shall provide Supplier with rolling [____]-month demand forecasts on a [____] basis. Forecasts are non-binding but shall be prepared in good faith. Supplier shall use commercially reasonable efforts to accommodate order volumes that exceed forecasts by up to [____]%.

6. INTELLECTUAL PROPERTY OWNERSHIP AND LICENSING

6.1 Supplier IP. Supplier retains all right, title, and interest in and to the Products, including all Intellectual Property embodied therein. Nothing in this Agreement shall be construed as an assignment or transfer of Supplier's IP to Partner, except for the limited licenses expressly granted herein.

6.2 Partner IP. Partner retains all right, title, and interest in and to Partner's Marks, Partner's proprietary add-ons, customizations, and any materials independently created by Partner. Nothing in this Agreement shall be construed as an assignment or transfer of Partner's IP to Supplier.

6.3 License to Supplier IP. Subject to the terms of this Agreement, Supplier grants Partner a limited, non-exclusive (or exclusive, per Section 2), non-transferable license to:

(a) Use, reproduce, and distribute the Products solely as part of the Branded Products within the Territory;

(b) Use Supplier's documentation and marketing templates solely in connection with the distribution of Branded Products;

(c) Sublicense the Products to End Customers solely under end-user terms approved by Supplier.

6.4 Improvements.

(a) Improvements, enhancements, modifications, or derivative works to the Products created by Supplier shall be owned exclusively by Supplier;

(b) Improvements created by Partner independently from the Products shall be owned by Partner;

(c) Joint improvements shall be governed by:
☐ Supplier ownership with a perpetual, royalty-free license to Partner
☐ Partner ownership with a perpetual, royalty-free license to Supplier
☐ Joint ownership, with each Party having independent exploitation rights

6.5 Open Source. Supplier shall disclose in Schedule A any open-source software included in the Products and the applicable open-source licenses. Supplier warrants that the use of open-source software does not create obligations that would require Partner to disclose its proprietary source code.

6.6 Feedback. If Partner provides suggestions, ideas, or feedback regarding the Products ("Feedback"), Supplier shall own all rights in the Feedback and may use it without restriction or obligation to Partner.

7. WARRANTIES

7.1 Supplier Warranties. Supplier represents and warrants that:

(a) Conformance to Specifications. The Products shall conform to the Specifications and documentation in all material respects for a period of [____] months from delivery (the "Warranty Period");

(b) Merchantability. To the extent this Agreement involves the sale of goods, Supplier warrants that the Products shall be merchantable as defined under NMSA § 55-2-314, meaning, among other things, that they shall pass without objection in the trade under the contract description, be fit for the ordinary purposes for which such goods are used, run of even kind, quality and quantity, and be adequately contained, packaged, and labeled. Under New Mexico law, a defendant may be held liable for breach of implied warranty of merchantability without regard to privity of contract;

(c) Fitness for Particular Purpose. Where Supplier at the time of contracting has reason to know any particular purpose for which the Products are required and that Partner is relying on Supplier's skill or judgment to select or furnish suitable goods, Supplier warrants that the Products shall be fit for such particular purpose, consistent with NMSA § 55-2-315;

(d) Title and Non-Infringement. Supplier warrants that it has good and marketable title to the Products, free and clear of all liens and encumbrances, and that the Products, as delivered, do not infringe upon any third party's Intellectual Property rights;

(e) Compliance with Laws. Supplier warrants that the Products comply with all applicable federal, New Mexico, and local laws and regulations;

(f) Malware-Free. Any software components of the Products shall be free from viruses, malware, spyware, and other malicious code at the time of delivery;

(g) Authority. Supplier has full power and authority to enter into this Agreement and to perform its obligations hereunder.

7.2 Partner Warranties. Partner represents and warrants that:

(a) Partner has full power and authority to enter into this Agreement;

(b) Partner shall use the Products and Supplier's Marks solely as authorized under this Agreement;

(c) Partner shall comply with all applicable federal, New Mexico, and local laws in the marketing and distribution of Branded Products, including the New Mexico Unfair Practices Act (NMSA §§ 57-12-1 et seq.);

(d) Partner's independent modifications, customizations, or add-ons shall not infringe upon any third party's rights.

7.3 Warranty Disclaimers. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN THIS SECTION 7, AND TO THE MAXIMUM EXTENT PERMITTED BY NEW MEXICO LAW (INCLUDING NMSA § 55-2-316), SUPPLIER MAKES NO OTHER WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. To exclude or modify the implied warranty of merchantability, the language must mention "merchantability" and, in the case of a writing, must be conspicuous. To exclude the implied warranty of fitness for a particular purpose, the exclusion must be by a writing and conspicuous (NMSA § 55-2-316(2)).

7.4 Warranty Claims. Partner shall notify Supplier of any warranty claim in writing within [____] days of discovery of the defect. Supplier's obligation under this warranty shall be limited to, at Supplier's option: (a) repair of the defective Product; (b) replacement of the defective Product; or (c) refund of the purchase price paid for the defective Product.

7.5 Buyer's Damages for Breach. In the event of breach of warranty, Partner's measure of damages shall include, as applicable, the difference between the value of the goods accepted and their value as warranted, together with incidental and consequential damages as provided in NMSA § 55-2-714.

8. LIMITATION OF LIABILITY

8.1 Cap on Direct Damages. EXCEPT FOR EACH PARTY'S OBLIGATIONS UNDER SECTIONS 9 (INDEMNIFICATION), 10 (CONFIDENTIALITY), AND CLAIMS ARISING FROM A PARTY'S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, NEITHER PARTY'S AGGREGATE LIABILITY UNDER THIS AGREEMENT SHALL EXCEED THE TOTAL FEES PAID OR PAYABLE BY PARTNER TO SUPPLIER DURING THE [____]-MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM.

8.2 Exclusion of Consequential Damages. IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, PUNITIVE, OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO DAMAGES FOR LOSS OF PROFITS, REVENUE, GOODWILL, DATA, OR BUSINESS OPPORTUNITY, REGARDLESS OF THE FORM OF ACTION OR THEORY OF LIABILITY, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

8.3 New Mexico Enforceability. The Parties acknowledge that New Mexico courts generally enforce contractual limitations on liability in arm's-length commercial transactions between sophisticated parties, provided such limitations are not unconscionable. If any limitation in this Section 8 is found unenforceable by a New Mexico court, the remaining limitations shall continue in full force and effect.

8.4 Essential Purpose. The limitations set forth in this Section 8 shall apply even if any limited remedy provided herein fails of its essential purpose.

8.5 Unfair Practices Act. Nothing in this Section 8 shall limit either Party's liability for violations of the New Mexico Unfair Practices Act (NMSA §§ 57-12-1 et seq.), to the extent such limitations are prohibited by that statute.

9. INDEMNIFICATION

9.1 Supplier Indemnification. Supplier shall defend, indemnify, and hold harmless Partner, its officers, directors, employees, agents, and affiliates (collectively, "Partner Indemnitees") from and against any and all third-party claims, demands, actions, losses, damages, liabilities, costs, and expenses (including reasonable attorneys' fees) arising out of or relating to:

(a) Any breach by Supplier of its representations, warranties, or obligations under this Agreement;

(b) Any claim that the Products (as delivered by Supplier, unmodified by Partner) infringe upon any third party's Intellectual Property rights;

(c) Any product liability claim arising from defects in the Products attributable to Supplier's design, manufacturing, or workmanship;

(d) Supplier's violation of any applicable law or regulation;

(e) Any data breach or security incident caused by Supplier's negligence or failure to comply with Section 11.

9.2 Partner Indemnification. Partner shall defend, indemnify, and hold harmless Supplier, its officers, directors, employees, agents, and affiliates (collectively, "Supplier Indemnitees") from and against any and all third-party claims, demands, actions, losses, damages, liabilities, costs, and expenses (including reasonable attorneys' fees) arising out of or relating to:

(a) Any breach by Partner of its representations, warranties, or obligations under this Agreement;

(b) Partner's independent modifications, customizations, or add-ons to the Products;

(c) Partner's marketing claims, representations, or warranties about the Branded Products that exceed or differ from those authorized by Supplier;

(d) Partner's violation of any applicable law or regulation, including export controls and sanctions;

(e) Any claim arising from Partner's violation of the New Mexico Unfair Practices Act (NMSA §§ 57-12-1 et seq.).

9.3 Indemnification Procedure. The indemnified Party shall:

(a) Provide prompt written notice of any claim to the indemnifying Party (provided that failure to give timely notice shall not relieve the indemnifying Party except to the extent materially prejudiced);

(b) Grant the indemnifying Party sole control of the defense and settlement of the claim;

(c) Provide reasonable cooperation and assistance to the indemnifying Party at the indemnifying Party's expense.

9.4 Settlement. The indemnifying Party shall not settle any claim without the indemnified Party's prior written consent if such settlement imposes any obligation (other than payment of money) on the indemnified Party, admits fault on behalf of the indemnified Party, or does not include a full release of all claims against the indemnified Party.

10. CONFIDENTIALITY AND TRADE SECRETS

10.1 Obligations. Each Party (the "Receiving Party") shall hold all Confidential Information of the other Party (the "Disclosing Party") in strict confidence and shall not disclose such information to any third party except to the Receiving Party's employees, contractors, and advisors who have a need to know and are bound by confidentiality obligations at least as protective as those contained herein. The Receiving Party shall protect Confidential Information using at least the same degree of care it uses to protect its own confidential information, but in no event less than reasonable care.

10.2 New Mexico Uniform Trade Secrets Act. The Parties acknowledge that certain Confidential Information may constitute "trade secrets" as defined in the New Mexico Uniform Trade Secrets Act (NMSA § 57-3A-2), which defines a trade secret as information, including a formula, pattern, compilation, program, device, method, technique or process, that derives independent economic value, actual or potential, from not being generally known to and not being readily ascertainable by proper means by other persons who can obtain economic value from its disclosure or use, and is the subject of efforts that are reasonable under the circumstances to maintain its secrecy.

10.3 Remedies for Misappropriation. In the event of actual or threatened misappropriation of trade secrets:

(a) Injunctive Relief. The non-breaching Party may seek injunctive relief pursuant to NMSA § 57-3A-3. In exceptional circumstances — including where there has been a material and prejudicial change of position prior to acquiring knowledge of the misappropriation — an injunction may condition future use upon payment of a reasonable royalty. Additionally, affirmative acts to protect a trade secret may be compelled by court order;

(b) Damages. The non-breaching Party may recover damages for actual loss caused by the misappropriation and any unjust enrichment not accounted for in the actual loss calculation (NMSA § 57-3A-4). In lieu of other damage measures, a reasonable royalty may be imposed;

(c) Exemplary Damages. If willful and malicious misappropriation exists, the court may award exemplary damages not exceeding twice the compensatory damages;

(d) Attorney's Fees. The court may award reasonable attorney's fees to the prevailing party if a claim is made in bad faith or willful and malicious misappropriation exists (NMSA § 57-3A-5).

10.4 Statute of Limitations. An action for misappropriation under the New Mexico Uniform Trade Secrets Act must be brought within three (3) years after the misappropriation is discovered or by the exercise of reasonable diligence should have been discovered (NMSA § 57-3A-6).

10.5 Exceptions. Confidential Information shall not include information that:

(a) Was already known to the Receiving Party without restriction at the time of disclosure;

(b) Becomes publicly available through no fault of the Receiving Party;

(c) Is independently developed by the Receiving Party without use of or reference to the Disclosing Party's Confidential Information;

(d) Is received from a third party without restriction and without breach of any obligation of confidentiality.

10.6 Required Disclosures. The Receiving Party may disclose Confidential Information to the extent required by applicable law, regulation, or court order, provided that the Receiving Party gives the Disclosing Party prompt written notice (to the extent legally permitted) and cooperates with the Disclosing Party's efforts to obtain protective treatment.

10.7 Return of Materials. Upon termination or expiration of this Agreement, or upon request by the Disclosing Party, the Receiving Party shall promptly return or destroy all Confidential Information and certify such return or destruction in writing.

11. DATA PROTECTION AND BREACH NOTIFICATION

11.1 Data Protection Obligations. To the extent that either Party processes personal identifying information in connection with this Agreement, such Party shall:

(a) Comply with all applicable federal and New Mexico data protection laws and regulations;

(b) Implement and maintain reasonable security procedures and practices appropriate to the nature and sensitivity of the personal information;

(c) Not use personal information for any purpose other than the performance of its obligations under this Agreement;

(d) Cooperate with the other Party in responding to data subject requests and regulatory inquiries.

11.2 Data Processing Addendum. If the Products involve the processing of personal data on behalf of Partner or End Customers, the Parties shall execute a Data Processing Addendum substantially in the form attached as Schedule D.

11.3 Breach Notification — New Mexico Requirements. In the event of a security breach involving the personal identifying information of New Mexico residents, the responsible Party shall comply with the New Mexico Data Breach Notification Act (NMSA §§ 57-12C-1 through 57-12C-12):

(a) Timing. Notification shall be made in the most expedient time possible, but not later than forty-five (45) calendar days following discovery of the security breach (NMSA § 57-12C-6);

(b) Notification to Affected Individuals. Written notice shall be provided to each affected New Mexico resident whose personal identifying information was, or is reasonably believed to have been, subject to the breach;

(c) Content of Notice. Notification shall include: (i) the name and contact information of the notifying entity; (ii) a list of the types of personal identifying information reasonably believed to have been involved; (iii) the date of the breach or the estimated date or date range; (iv) a general description of the breach incident; (v) toll-free telephone numbers and addresses of major consumer reporting agencies; and (vi) advice directing the recipient to review personal account statements and credit reports (NMSA § 57-12C-7);

(d) Notification to Attorney General. The Party shall notify the New Mexico Attorney General of the breach concurrently with notification to affected individuals;

(e) Substitute Notice. If the cost of notice exceeds $50,000, the affected class exceeds 100,000 persons, or the Party does not have sufficient contact information, substitute notice may be provided consisting of email notification, conspicuous posting on the Party's website, and notification to major statewide media (NMSA § 57-12C-8);

(f) Enforcement. The New Mexico Attorney General may impose enforcement actions, including injunctive relief and monetary penalties of up to $25,000 per violation, calculated per incident (NMSA § 57-12C-11);

(g) Inter-Party Notification. The Party experiencing the breach shall notify the other Party within [____] hours of confirming a breach that involves personal information processed under this Agreement.

11.4 Security Standards. Each Party shall implement and maintain security measures that include, at a minimum:

(a) Encryption of personal information in transit and at rest;

(b) Access controls limiting access to personal information to authorized personnel;

(c) Regular security assessments and vulnerability testing;

(d) Employee training on data security and privacy;

(e) Incident response plans for addressing security breaches.

12. TERM, TERMINATION, AND TRANSITION ASSISTANCE

12.1 Initial Term. This Agreement shall commence on the Effective Date and continue for a period of [____] years (the "Initial Term"), unless earlier terminated as provided herein.

12.2 Renewal. Upon expiration of the Initial Term, this Agreement shall:

☐ Automatically renew for successive [____]-year periods unless either Party provides written notice of non-renewal at least [____] days prior to the expiration of the then-current term
☐ Terminate at the end of the Initial Term unless the Parties execute a written renewal agreement

12.3 Termination for Cause. Either Party may terminate this Agreement upon written notice if:

(a) The other Party commits a material breach that remains uncured for [____] days after written notice specifying the breach;

(b) The other Party becomes insolvent, files a petition in bankruptcy, makes an assignment for the benefit of creditors, or has a receiver appointed for a substantial part of its assets;

(c) The other Party violates any applicable export control, sanctions, or anti-corruption law.

12.4 Termination for Convenience. Either Party may terminate this Agreement for convenience upon [____] days' prior written notice to the other Party.

12.5 Termination for Failure to Meet MOQs. If Partner fails to meet the Minimum Order Quantities for [____] consecutive quarters, Supplier may terminate this Agreement upon [____] days' written notice, provided that Supplier first offers Partner a cure period of [____] days.

12.6 Effects of Termination. Upon termination or expiration of this Agreement:

(a) Partner shall immediately cease marketing and distributing new Branded Products;

(b) Partner shall have a sell-off period of [____] days to exhaust existing inventory;

(c) Partner shall remove all Supplier branding and Marks from its materials within [____] days;

(d) Each Party shall return or destroy all Confidential Information of the other Party;

(e) Partner shall pay all outstanding invoices within [____] days of the termination date;

(f) Accrued rights, obligations, and liabilities shall survive as set forth in Section 12.8.

12.7 Transition Assistance. Upon termination or expiration, Supplier shall provide commercially reasonable transition assistance for a period not to exceed [____] months, including:

(a) Continued technical support for Branded Products already deployed to End Customers;

(b) Cooperation in migrating End Customers to alternative solutions;

(c) Provision of data exports and documentation necessary for the transition.

Transition assistance shall be provided at Supplier's then-current rates unless otherwise agreed.

12.8 Survival. The following Sections shall survive termination or expiration: Sections 1, 6, 7 (to the extent claims arose during the term), 8, 9, 10, 11, 14, and 16.

13. INSURANCE REQUIREMENTS

13.1 Required Coverage. During the term of this Agreement and for a period of [____] years thereafter, each Party shall maintain the following insurance coverage with carriers rated A-VII or better by A.M. Best:

(a) Commercial General Liability: $[________________________________] per occurrence / $[________________________________] aggregate;

(b) Product Liability / Completed Operations: $[________________________________] per occurrence / $[________________________________] aggregate;

(c) Professional Liability / Errors and Omissions: $[________________________________] per claim / $[________________________________] aggregate;

(d) Cyber Liability / Technology Errors and Omissions: $[________________________________] per claim / $[________________________________] aggregate;

(e) Workers' Compensation: As required by New Mexico law (NMSA §§ 52-1-1 et seq.);

(f) Commercial Automobile Liability: $[________________________________] combined single limit (if applicable).

13.2 Additional Insured. Each Party shall name the other Party as an additional insured on its Commercial General Liability and Product Liability policies.

13.3 Certificates. Each Party shall provide certificates of insurance evidencing the required coverage upon request and shall provide at least [____] days' written notice prior to any cancellation or material change in coverage.

14. DISPUTE RESOLUTION

14.1 Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of New Mexico, including the New Mexico Uniform Commercial Code (NMSA Chapter 55) to the extent applicable, without regard to its conflict of laws principles.

14.2 Informal Resolution. The Parties shall first attempt to resolve any dispute through good faith negotiation between designated representatives for a period of [____] days.

14.3 Mediation. If informal negotiation fails, the Parties shall submit the dispute to mediation administered by [________________________________] in [________________________________], New Mexico, before initiating any arbitration or litigation proceeding.

14.4 Dispute Resolution Method. If mediation does not resolve the dispute within [____] days:

☐ Arbitration. The dispute shall be resolved by binding arbitration in accordance with the rules of [________________________________] in [________________________________], New Mexico. The arbitration shall be conducted by [____] arbitrator(s). The arbitrator's decision shall be final and binding, and judgment upon the award may be entered in any court of competent jurisdiction.

☐ Litigation. The dispute shall be resolved by the state or federal courts located in [________________________________] County, New Mexico (e.g., Bernalillo County or Santa Fe County). Each Party irrevocably consents to the exclusive jurisdiction and venue of such courts.

14.5 Jury Waiver. TO THE FULLEST EXTENT PERMITTED BY NEW MEXICO LAW, EACH PARTY HEREBY IRREVOCABLY WAIVES ANY RIGHT TO A JURY TRIAL IN ANY ACTION, PROCEEDING, OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT.

14.6 Injunctive Relief. Notwithstanding the foregoing, either Party may seek injunctive or other equitable relief from any court of competent jurisdiction to prevent irreparable harm, including but not limited to the protection of Confidential Information and trade secrets under NMSA §§ 57-3A-1 et seq.

14.7 Attorneys' Fees. In any action or proceeding to enforce this Agreement, the prevailing Party shall be entitled to recover its reasonable attorneys' fees, costs, and expenses.

15. FORCE MAJEURE

15.1 Definition. Neither Party shall be liable for any failure or delay in performing its obligations under this Agreement (other than payment obligations) to the extent such failure or delay results from a Force Majeure Event. A "Force Majeure Event" means any event beyond the reasonable control of the affected Party, including but not limited to: acts of God, natural disasters, epidemics, pandemics, fire, flood, earthquake, drought, severe weather, war, terrorism, civil unrest, government actions, embargoes, sanctions, strikes, labor disputes, power failures, telecommunications failures, or supply chain disruptions.

15.2 Notice. The affected Party shall provide written notice to the other Party within [____] days of the occurrence of a Force Majeure Event, describing the event and its expected duration.

15.3 Mitigation. The affected Party shall use commercially reasonable efforts to mitigate the impact and resume performance as soon as practicable.

15.4 Extended Force Majeure. If a Force Majeure Event continues for more than [____] consecutive days, either Party may terminate this Agreement upon [____] days' written notice without liability.

16. GENERAL PROVISIONS

16.1 Entire Agreement. This Agreement, together with all Schedules and Exhibits, constitutes the entire agreement between the Parties with respect to the subject matter hereof and supersedes all prior and contemporaneous agreements, negotiations, representations, and understandings.

16.2 Amendments. This Agreement may be amended only by a written instrument signed by authorized representatives of both Parties.

16.3 Assignment. Neither Party may assign this Agreement without the prior written consent of the other Party, except that either Party may assign in connection with a merger, acquisition, or sale of all or substantially all of its assets, provided the assignee agrees in writing to be bound by the terms hereof.

16.4 Severability. If any provision is held invalid or unenforceable by a New Mexico court, the remaining provisions shall continue in full force and effect, and the invalid provision shall be reformed to the minimum extent necessary to make it enforceable while preserving the Parties' original intent.

16.5 Waiver. No failure or delay by either Party in exercising any right shall operate as a waiver thereof, nor shall any single or partial exercise preclude any other or further exercise.

16.6 Notices. All notices shall be in writing and deemed given when: (a) delivered personally; (b) sent by certified or registered mail, return receipt requested; (c) sent by nationally recognized overnight courier; or (d) sent by email with confirmation of receipt. Notices shall be sent to the addresses set forth in the preamble.

16.7 Independent Contractors. The Parties are independent contractors. Nothing herein shall create a joint venture, partnership, agency, or employment relationship.

16.8 No Third-Party Beneficiaries. This Agreement is for the sole benefit of the Parties and their respective successors and permitted assigns.

16.9 Counterparts and Electronic Signatures. This Agreement may be executed in counterparts, each of which shall be deemed an original. Electronic signatures shall be valid and binding in accordance with the New Mexico Uniform Electronic Transactions Act (NMSA §§ 14-16-1 et seq.).

16.10 Order of Precedence. In the event of conflict between the body of this Agreement and any Schedule or Exhibit, the body shall control unless the Schedule expressly states otherwise.

16.11 Publicity. Neither Party shall issue any press release regarding this Agreement without the prior written consent of the other Party, except as required by law.

16.12 Export Compliance. Each Party shall comply with all applicable export control and sanctions laws, including the U.S. Export Administration Regulations and OFAC sanctions programs.

16.13 Anti-Corruption. Each Party represents that it has not and will not make any payment or provide anything of value to any government official in violation of the Foreign Corrupt Practices Act or any applicable anti-corruption law.

16.14 Non-Compete and Restrictive Covenant Considerations. The Parties acknowledge the following under New Mexico law:

(a) General Standard. Non-compete agreements are enforceable in New Mexico if the restrictions are reasonable in time, geographic scope, and activity, and are necessary to protect a legitimate business interest (NMSA § 57-1-1; see also common law reasonableness test);

(b) Healthcare Exception. Non-compete provisions restricting the right of a health care practitioner to provide clinical health care services in New Mexico are unenforceable (NMSA § 24-1I-2);

(c) Reasonableness. New Mexico courts have generally upheld non-compete periods of three (3) years or less as reasonable when properly limited in geographic scope;

(d) Application to This Agreement. Any restrictive covenants contained in this Agreement or its Schedules are intended to protect legitimate business interests and are limited accordingly.

16.15 Restraint of Trade. The Parties acknowledge that contracts, agreements, or combinations in restraint of trade are void under New Mexico law (NMSA § 57-1-1). The provisions of this Agreement are not intended to constitute an unreasonable restraint of trade.

17. SIGNATURE BLOCKS

IN WITNESS WHEREOF, the Parties have executed this OEM / White-Label Agreement as of the Effective Date first written above.

SUPPLIER:

Signature: [________________________________]
Printed Name: [________________________________]
Title: [________________________________]
Date: [__/__/____]

OEM PARTNER / RESELLER:

Signature: [________________________________]
Printed Name: [________________________________]
Title: [________________________________]
Date: [__/__/____]

18. SCHEDULES AND EXHIBITS

SCHEDULE A — PRODUCT SPECIFICATIONS, PRICING, AND MINIMUM ORDERS

SCHEDULE B — SERVICE LEVEL AGREEMENT (SLA)

Support Tiers:
- Tier 1 (Partner): First-level customer support, troubleshooting, and issue documentation
- Tier 2 (Supplier): Technical escalation, bug diagnosis, and workaround identification
- Tier 3 (Supplier): Engineering-level issue resolution, patches, and fixes

SCHEDULE C — BRANDING GUIDELINES

SCHEDULE D — DATA PROCESSING ADDENDUM (DPA)

☐ Attached hereto and incorporated by reference
☐ To be negotiated and executed separately within [____] days of the Effective Date
☐ Not applicable (no personal data processing involved)

SOURCES AND REFERENCES

1. New Mexico Uniform Commercial Code, Article 2 — Sales (NMSA Chapter 55): Justia — NM UCC Article 2
2. NMSA § 55-2-314 — Implied Warranty of Merchantability: Justia
3. NMSA § 55-2-315 — Implied Warranty of Fitness for Particular Purpose: Justia
4. New Mexico Uniform Trade Secrets Act (NMSA §§ 57-3A-1 through 57-3A-7): Justia
5. New Mexico Data Breach Notification Act (NMSA §§ 57-12C-1 through 57-12C-12): Justia
6. New Mexico Unfair Practices Act (NMSA §§ 57-12-1 et seq.): Justia
7. New Mexico Uniform Electronic Transactions Act (NMSA §§ 14-16-1 et seq.): NM Legislature
8. New Mexico Restraint of Trade (NMSA § 57-1-1): Justia
9. New Mexico Non-Compete Law: Business Law Southwest
10. Davis Wright Tremaine — New Mexico Data Breach Summary: DWT