- (i) market the Software to licensees or potential licensees;
- (ii) buy Software licenses for distribution to licensees or potential licensees; and
- (iii) distribute the Software and licenses to the Software to licensees or potential licensees.
- (i) the Provider reserves all ownership rights in the Software;
- (ii) the Distributor acquires no interest in the Software, except for the right to offer for sale or to sell the Software to third parties in accordance with the terms of this agreement; and
- (iii) nothing contained in this agreement restricts the Provider's right to sell, license, or otherwise grant rights in the Software to third parties.
2. TERM AND TERMINATION.
- (a) Term. This agreement will become effective as described in section 23 and continue for an initial term of year(s) (the "Term"). Unless either party gives written notice to the other at least days before the end of the Term, this agreement will renew automatically for an additional -year term. This automatic extension will continue to apply at the end of each extended period until the agreement is terminated. However, this agreement may not remain effective for more than years.
- (b) Termination. This agreement may be terminated:
- (i) by either party, on provision of days' written notice before the end of a Term;
- (ii) by either party for a material breach of any provision of this agreement by the other party, if the other party's material breach is not cured within days of receipt of written notice of the breach.
- (i) immediately stop all further publication, sale, and other use of the Software;
- (ii) remove all Software from the Site; and
- (iii) destroy or return to the Provider all hard or electronic copies of Software in its possession or control.
3. DISTRIBUTION, MARKETING, AND SUPPORT.
The Distributor shall offer for sale and sell the Software on the Site via software download. The Provider will make available to the Distributor a downloadable file and collateral material and content to allow the Distributor to offer for sale and sell the Software, including marketing and delivery of the Software to customers. For Software sold under this agreement, the Provider shall:
- (a) deliver support in the same manner and to the same extent as it supports the Software sold internally or through other distributors;
- (b) provide a limited royalty-free (other than as set forth in this agreement) license to the Distributor to access and print information, logos, terms, and conditions with respect to the sale and download of the Software by the Distributor's customers; and
- (c) require customers who purchase the Software to agree to a standard terms of use "click-wrap" agreement that identifies the Provider as the seller of the Software and that requires the purchaser to hold harmless any third-party distributor (including the Distributor) from legal actions related to the Software and its operation.
The Distributor shall have the sole discretion to determine the manner of all marketing, offering, sale, payment, or download of the Software on the Site, if those efforts are consistent with this agreement.
4. FEES.
- (a) The Distributor shall charge a fee to the Software's licensees for the electronic transmission and delivery of the Software as set forth below.
- (b) The Provider will receive a fee from the Distributor for providing the Software to the Distributor and permitting the licensing of the Software by the Distributor to its customers.
- These fees shall be based on a per unit price generated by the sale of the Software by the Distributor. As of the effective date of this agreement (as set out in section 23), the retail price for the Software is .
- For monthly order volume of up to successful sales, the Distributor shall pay the Provider . For monthly order volume of and above, the Distributor shall pay the Provider .
5. PAYMENT OF FEES.
Within days after the end of each month, the Distributor shall send the Provider a sales statement (the "Statement") and pay the Provider's fee for the Software sold on the Site, net of any amounts refunded as set forth below. Any permitted cancellations or refund requests will be reconciled during the month those requests are received, and the Distributor shall deduct the proportionate amount from the next monthly payment due to the Provider. With each fee payment, the Distributor shall provide a Statement containing reasonable explanation of the sales and revenue calculations.
6. MINIMUM RETAIL PRICE.
The Distributor may set the price charged for the Software on its Site. However, that retail price may not be less than .
7. PROVIDER REPRESENTATIONS.
The Provider hereby represents that:
- (a) it has prepared the Software and owns all intellectual property interest in the Software;
- (b) it owns all interest in the Software and any documentation;
- (c) neither the Software nor its documentation infringe or will infringe the intellectual property rights or other rights of any third party;
- (d) the Software will perform according to any warranty established by the Provider in direct sales to consumers, with reasonable warranties as to performance and viruses; and
- (e) it has the right to authorize the Distributor to market, offer for sale, and sell the Software under this agreement.
8. NO EMPLOYMENT RELATIONSHIP.
Neither party, their agents, or their employees are employees, agents, or representatives of the other party. Neither party may enter into any contract or commitment in the name or on behalf of the other party, or to bind the other party in any capacity.
9. LIMITATION OF LIABILITY.
EXCEPT FOR CLAIMS IN SECTION 10 BELOW, IN NO EVENT WILL EITHER PARTY BE LIABLE OR RESPONSIBLE TO THE OTHER FOR ANY TYPE OF INCIDENTAL, PUNITIVE, SPECIAL, INDIRECT, OR CONSEQUENTIAL DAMAGES RELATING TO THIS AGREEMENT, INCLUDING LOST REVENUE, LOST PROFITS, LOSSES ASSOCIATED WITH TRANSACTIONS ENTERED OR NOT ENTERED INTO ON THE SITE, EVEN IF ADVISED OF THE POSSIBILITY OF THOSE DAMAGES, WHETHER ARISING UNDER ANY THEORY OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE. EACH PARTY'S LIABILITY TO THE OTHER PARTY OR ANY THIRD PARTIES IS LIMITED TO THE LESSER OF: (i) THE AMOUNT PAYABLE BY THE DISTRIBUTOR TO THE PROVIDER UNDER THIS AGREEMENT DURING THE 12-MONTH PERIOD IMMEDIATELY PRECEDING THE DATE ON WHICH THE LOSS OR DAMAGE FIRST OCCURRED; OR (ii) .
SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTIAL OR CONSEQUENTIAL DAMAGES SO, TO THE EXTENT NOT ALLOWED BY LAW, SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO EITHER OR BOTH PARTIES.
10. INDEMNIFICATION OF DISTRIBUTOR.
The Provider is solely responsible for the representations listed in section 7 above and its claimed intellectual property and ownership rights in the Software. The Provider shall indemnify the Distributor against any award, charge, claim, compensatory damages, cost, damages, exemplary damages, diminution in value, expense, fee, fine, interest, judgment, liability, settlement payment, penalty or other loss or any attorney's or other professional's fee and disbursement, court filing fee, court cost, arbitration fee, arbitration cost, witness fee, and each other fee and cost of investigating and defending or asserting a claim for indemnification arising out of any violation of this agreement, or from infringement or any claim of infringement of any patent, trademark, copyright, or trade secret with respect to the Software. If there is a legal action that seeks remedy from the Distributor concerning the Provider's warranty, infringement of copyright, patent, trade secret, or other proprietary right in the Software, the Distributor shall immediately notify the Provider of that action. The Distributor's failure to provide timely notification shall not limit its right to seek indemnification, unless that failure has a material impact on the Provider's defense of the claim.
11. CONFIDENTIAL INFORMATION.
During the Term and for a period of years thereafter , each party (in such capacity, a "Receiving Party") shall hold in strictest confidence and not use, except for the benefit of the other party (in such capacity, a "Disclosing Party") or as required by law, or to disclose to any person, firm, or corporation without the prior written authorization of the Disclosing Party, any Confidential Information of the Disclosing Party. "Confidential Information" means any of the Disclosing Party's proprietary information, technical data, trade secrets, or know-how, including research, product plans, products, services, customer lists, markets, software, developments, inventions, processes, formulas, technology, designs, drawings, engineering, hardware configuration information, marketing, finances, or other business information disclosed to the Receiving Party by the Disclosing Party, either directly or indirectly. The Receiving Party may use the Confidential Information to the extent necessary for negotiations, discussions, and consultations with Disclosing Party personnel or authorized representatives or for any other purpose the Disclosing Party may authorize in writing.
12. INTERRUPTION OF SERVICE.
Although the Distributor will attempt to keep its Site operational at all times, a certain amount of downtime and interruption of service is inevitable. The Distributor is not responsible for any interruption of service to the Site and the Provider shall not hold the Distributor liable for any consequences of interruption of the Site, regardless of the cause, other than refunds under section 5 above.
13. COMPLIANCE WITH LAWS.
The Provider has and shall comply with all applicable laws and regulations regarding its business and the export or availability of the Software to the Distributor for purposes of providing the Software to the Distributor's customers. The Provider represents that the Distributor's resale of the Software to its customers does not violate any law or regulation.
14. GOVERNING LAW.
- (a) Choice of Law. The laws of the state of govern this agreement (without giving effect to its conflicts of law principles).
- (b) Choice of Forum. Both parties consent to the personal jurisdiction of the state and federal courts in County, .
15. AMENDMENTS.
No amendment to this agreement will be effective unless it is in writing and signed by a party.
16. ASSIGNMENT AND DELEGATION.
- (a) No Assignment. Neither party may assign any of its rights under this agreement, except with the prior written consent of the other party. All voluntary assignments of rights are limited by this subsection.
- (b) No Delegation. Neither party may delegate any performance under this agreement, except with the prior written consent of the other party.
- (c) Enforceability of an Assignment or Delegation. If a purported assignment or purported delegation is made in violation of this section, it is void.
17. COUNTERPARTS; ELECTRONIC SIGNATURES.
- (a) Counterparts. The parties may execute this agreement in any number of counterparts, each of which is an original but all of which constitute one and the same instrument.
- (b) Electronic Signatures. This agreement, agreements ancillary to this agreement, and related documents entered into in connection with this agreement are signed when a party's signature is delivered by facsimile, email, or other electronic medium. These signatures must be treated in all respects as having the same force and effect as original signatures.
18. SEVERABILITY.
If any one or more of the provisions contained in this agreement is, for any reason, held to be invalid, illegal, or unenforceable in any respect, that invalidity, illegality, or unenforceability will not affect any other provisions of this agreement, but this agreement will be construed as if those invalid, illegal, or unenforceable provisions had never been contained in it, unless the deletion of those provisions would result in such a material change so as to cause completion of the transactions contemplated by this agreement to be unreasonable.
19. NOTICES.
- (a) Writing; Permitted Delivery Methods. Each party giving or making any notice, request, demand, or other communication required or permitted by this agreement shall give that notice in writing and use one of the following types of delivery, each of which is a writing for purposes of this agreement: personal delivery, mail (registered or certified mail, postage prepaid, return-receipt requested), nationally recognized overnight courier (fees prepaid), facsimile, or email.
- (b) Addresses. A party shall address notices under this section to a party at the following addresses:
- If to the Distributor:
- If to the Provider:
- (c) Effectiveness. A notice is effective only if the party giving notice complies with subsections (a) and (b) and if the recipient receives the notice.
20. WAIVER.
No waiver of a breach, failure of any condition, or any right or remedy contained in or granted by the provisions of this agreement will be effective unless it is in writing and signed by the party waiving the breach, failure, right, or remedy. No waiver of any breach, failure, right, or remedy will be deemed a waiver of any other breach, failure, right, or remedy, whether or not similar, and no waiver will constitute a continuing waiver, unless the writing so specifies.
21. ENTIRE AGREEMENT.
This agreement constitutes the final agreement of the parties. It is the complete and exclusive expression of the parties' agreement about the subject matter of this agreement. All prior and contemporaneous communications, negotiations, and agreements between the parties relating to the subject matter of this agreement are expressly merged into and superseded by this agreement. The provisions of this agreement may not be explained, supplemented, or qualified by evidence of trade usage or a prior course of dealings. Neither party was induced to enter this agreement by, and neither party is relying on, any statement, representation, warranty, or agreement of the other party except those set forth expressly in this agreement. Except as set forth expressly in this agreement, there are no conditions precedent to this agreement's effectiveness.
22. HEADINGS.
The descriptive headings of the sections and subsections of this agreement are for convenience only, and do not affect this agreement's construction or interpretation.
23. EFFECTIVENESS.
This agreement will become effective when all parties have signed it. The date this agreement is signed by the last party to sign it (as indicated by the date associated with that party's signature) will be deemed the date of this agreement.
24. NECESSARY ACTS; FURTHER ASSURANCES.
Each party shall use all reasonable efforts to take, or cause to be taken, all actions necessary or desirable to consummate and make effective the transactions this agreement contemplates or to evidence or carry out the intent and purposes of this agreement.
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Each party is signing this agreement on the date stated opposite that party's signature.
