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as of ____________, 2009, (the "Effective Date"), by and between ______________, Inc., a company organized under the laws of the State of [Delaware], having a primary place of business at ____________________________(the "Company”) and _________________, Inc., a company organized under the laws of ___________, having a primary place of business at ______________________________________ ("Distributor"). Background A. The Company has developed and desires to promote, market and distribute the Company’s software products listed in Annex A (the “Products”); B. Distributor desires to obtain the right to act as an independent Distributor of the Products, with the non-exclusive right to market, promote and resell the Products. Agreement The Company and Distributor agree as follows: 1. APPOINTMENT AS DISTRIBUTOR. Subject to on the terms and conditions set forth herein, the Company appoints Distributor as an independent, non-exclusive authorized Distributor of the Products in the U.S.A ("Market"), and Distributor hereby accepts such appointment. Distributor may advertise, promote and resell the Products to third party resale entities within the Market. For purposes of this Agreement, the term "third party resale entity" means an entity that desires to resell the product to End-users. For purposes of this Agreement, the term "End User" means a person or entity that desires to acquire the Products for its own use, rather than for resale or distribution. All rights not specifically granted by the Company hereunder are reserved by the Company. Without limiting the generality of the foregoing, the Company reserves the right to advertise, promote, market and distribute the Products, and to appoint third parties to advertise, promote, market and distribute the Products, worldwide, including in the Market. Further, the Company reserves the right, in its sole discretion, at any time and from time to time, to modify any or all of the Products, or to discontinue the publication, distribution, sale or licensing of any or all of the Products without liability of any kind. 2. DISTRIBUTOR’S LIMITATIONS. Distributor shall: (i) not attempt to obtain, receive, review, or otherwise use or have access to the source codes of the Products (or any part thereof) by decompilation, disassembly or any other means; (ii) refrain from copying, reverse engineering, disassembling, de-compiling, translating, or modifying the Products, or granting any other third party the right to do so; (iii) not engage, itself or through the assistance of any third party, directly or indirectly, in the research, development, manufacturing, marketing, distribution, sale, lease or licensing of any Product which is or may constitute a derivative work of the Products; (iv) not represent that it possesses any proprietary interest in the Products; (v) not directly or indirectly, take any action to contest Company’s intellectual property rights or infringe them in any way; (vi) not register, nor to have registered, any trademarks, trade names or symbols of Company (or
which are similar to Marks); and (vii) not register any domain name using any of the Marks without Company prior written consent. 3. CONSIDERATION, ORDERS AND DELIVERY 3.1. Prices. Prices for Products are set forth in the price list, attached hereto and made a part hereof as Annex A. The Company may modify the price list at any time, including changes to the Products and increases of prices, or such other changes in the pricing policy, upon ninety (90) days prior written notice of the effective date of any such change. Price decreases will be effective as to Products that are shipped by the Company on or after the effective date of such change. 3.2. Taxes. Prices in the price list do not include any national, state or local sales, use, value added or other taxes, customs, duties or similar tariffs and fees that the Company may be required to pay or collect upon the delivery of Products or the collection of prices thereof. All such taxes or duties, other than taxes on the Company’s net income, will be paid by Distributor to the Company unless Distributor provides the Company with a valid certificate of exemption acceptable to the appropriate taxing or governmental authority. 3.3. Payment Terms. All the Company’s invoices will be paid by Distributor within thirty (30) days of the date of issuance. Any late payments will be subject to a late payment charge at a monthly rate of 1.5% (or such lesser amount as is then the highest rate permitted under applicable law) to be paid each month on such unpaid amounts. To the extent permitted in the Market, title to the Products shall be retained by the Company until the full payment of the price for the Products. In the event the Company is not able to retain full title to the Products as aforesaid, the Company shall retain a security interest in the Products until the entire balance of the Product price and all other monies payable hereunder are paid in full. Distributor shall pay for the Products in U.S. dollars in immediately available funds, by wire transfer, check or in such other manner as the Company may approve. 3.4. PO’s. All purchase orders for Products are subject to acceptance by the Company. The terms and conditions of this Agreement will apply to each order accepted or shipped by the Company hereunder. Any terms and conditions on the face or reverse side of Distributor’s purchase order which differ from, conflict with, or are in addition to the terms and conditions set forth in this Agreement shall be of no force or effect, unless the Company expressly agrees in a separate writing to be bound by such separate or additional terms and conditions. 3.5. Shipment. Orders shall be shipped F.O.B. the Company’s warehouse. Except as otherwise mutually agreed in writing, Distributor shall be responsible for all costs associated with its performance of this Agreement. All freight, insurance, duty and taxes applicable to Distributor's purchase and sale of Products shall be paid by Distributor. 3.6. Product Activation. The Distributor will receive a list of Product activation codes that will added by Distributor to each copy of a Product to enable an End User to activate the Product at the Company’s web site.
3.7. Packing. The Company and/or and of its Affiliates, will package and pack all goods in a manner which is adequate to insure safe arrival of the goods at the named destination, unless the Distributor shall market and sell and Products under its own Private Label, as provided under Section 10.2 below, where in such event, the Distributor shall package and pack all goods by itself.
4. MARKETING AND PROMOTION OF PRODUCTS 4.1. Promotion. Distributor shall use its best efforts to market and promote Products to in the Market, including by listing the Products in Distributor's product lists and Distributor's other marketing materials, and as further detailed in Annex A under marketing. 4.2. Marketing Practices. Distributor will at all times perform hereunder in a professional manner and in accordance with this Agreement and any guidelines issued by the Company. Distributor will: (a) conduct business in a manner that reflects favorably at all times on the Products and the good name, goodwill and reputation of the Company; (b) avoid deceptive, misleading or unethical practices that are or might be detrimental to the Company, the Products or the public, including but not limited to disparagement of the Company or the Products; (c) make no false or misleading representation with respect to the Company or the Products; and (d) make no representations with respect to the Company or the Products that are inconsistent with the Company’s end user license agreement for the Products, promotional materials and other literature distributed by the Company, including all liability limitations and disclaimers contained in such materials. 4.3. Promotional Materials. Distributor consents to the listing of its business name, address, phone number and web site addresses in the Company’s advertising and promotional materials as the Company may determine in its sole discretion, including product literature and the Company’s web sites. During the term of this Agreement, the Company may provide to Distributor promotional materials with respect to Products. Distributor may not use the promotional materials for any purpose other than advertising and promoting the Products to End Users in the Market. Notwithstanding anything to the contrary herein, Distributor may not distribute any Distributor-created promotional materials with respect to the Company or the Products without the Company’s prior written approval of such materials. 4.4. Permits, Licenses and Compliance with Laws. Distributor will, at its sole cost and expense, obtain all permits and licenses necessary in connection with its performance of this Agreement, and will comply with all applicable laws, rules and regulations in the performance of this Agreement. Without limiting the generality of the foregoing, Distributor will comply with all applicable export laws. 5. RESALE OF PRODUCTS. Distributor may charge resellers for Products at prices determined in Distributor's sole discretion. Distributor may distribute Products solely by sale of Packages. For purposes of this Agreement, a "Package" means physical or electronic media containing a
particular Product, related user documentation, and may include Company’s end user license agreement. The relationship between the End User and the Company shall be as specified in the applicable Company’s end user license agreement. 6. OWNERSHIP. The Products are and will remain the sole and exclusive property of any of the Company’s Affiliates, as defined below, whether the Products are separate or combined with any other products. The rights under this section will include, but not be limited to all Intellectual Property Rights in the Products. "Intellectual Property Rights" means all of the following: (a) copyrights, including moral rights, registrations and applications for registration thereof; (b) computer software Products, data and documentation; (c) patents, patent applications and all related continuations, divisional, reissue, utility models, design patents, applications and registrations thereof, certificates of inventions; (d) trade secrets and Confidential Information, know-how, manufacturing, source code process and techniques, designs, prototypes, enhancements, improvements, work-in progress, research and development information; (e) other proprietary rights relating to the foregoing. “Affiliates” shall mean the company or companies that own, or has the exclusive right to use, sell and market, the Products and/or its underlying technology. Distributor will not delete or in any manner alter the Intellectual Property Rights notices of the Company, its Affiliates or any of its suppliers, if any, appearing on the Products as delivered to Distributor. 7. CONFIDENTIALITY. Each party agrees that it will not disclose to any third party or use any Products or other Confidential Information disclosed to it by the other party, except to carry out its rights and obligations under this Agreement, and that it will take all reasonable measures to maintain the confidentiality of all Confidential Information in its possession or control, which will in no event be less than the measures it uses to maintain the confidentiality of its own information of similar importance. “Confidential Information” shall mean any proprietary information of the Company, designated as confidential or of a confidential nature, including but not limited to, all designs, concepts, scientific, algorithmic and structural information; the Company’s information related to the source code; information of a business and commercial nature (such as financial and marketing information disclosed in any form or medium whatsoever) and the terms and conditions of this Agreement. Confidential Information will not include information that is in or enters the public domain without breach of this Agreement; is lawfully obtained by the receiving party without breach of a nondisclosure obligation; is independently developed or already in the possession of the receiving party as shown by the receiving party's contemporaneous records; or, is required by law to be disclosed, provided that the receiving party gives prompt written notice of such requirement prior to disclosure 8. WARRANTY 8.1. Limited Warranty. The Company and any of its Affiliates will warrant to End User that during the 30 (thirty) days following delivery, the storage media containing the Products will be free from defects in materials and workmanship. In the event the storage media fail to conform to such warranty, as sole and exclusive remedy for such failure the Company will, at its option and without charge, repair or replace the storage media, provided the nonconforming item is returned to the Company by End User within the 30-day warranty period.
8.2. Extended Warranty and Support. The Company, at its sole discretion, shall have the exclusive right to offer End Users the ability to purchase extended warranty and support. The Company shall be responsible for providing such warranty support services. Distributor shall not have the right to offer such services or warranties, unless otherwise agreed in writing by the Company and the Distributor. 9. DISCLAIMER OF WARRANTIES. EXCEPT FOR THE EXPRESS WARRANTIES MADE TO THE END USER IN THE APPLICABLE COMPANY END USER LICENSE AGREEMENT, THE COMPANY, AND ANY OF ITS AFFILIATES, TO THE EXTENT APPLICABLE, MAKES NO OTHER WARRANTIES RELATING TO THE PRODUCTS, EXPRESS OR IMPLIED. THE COMPANY, AND ANY OF ITS AFFILIATES, TO THE EXTENT APPLICABLE, DISCLAIMS AND EXCLUDES ANY AND ALL IMPLIED WARRANTIES, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR USE AND NONINFRINGEMENT. NO PERSON IS AUTHORIZED TO MAKE ANY OTHER WARRANTY OR REPRESENTATION CONCERNING THE PRODUCTS OR THE MEDIA ON WHICH PRODUCTS ARE SUPPLIED. DISTRIBUTOR WILL MAKE NO WARRANTY, EXPRESS OR IMPLIED, ON BEHALF OF THE COMPANY AND ANY OF ITS AFFILIATES. 10. LIMITATION OF LIABILITY. THE COMPANY’S, AND ANY OF ITS AFFILIATES, TO THE EXTENT APPLICABLE, AGGREGATE LIABILITY TO DISTRIBUTOR UNDER THIS AGREEMENT, WHETHER FOR BREACH OR IN TORT, IS LIMITED TO THE PRICE PAID BY DISTRIBUTOR FOR THE COPIES OF THE PRODUCT WHICH GIVES RISE TO THE CLAIM. IN NO EVENT WILL THE COMPANY BE LIABLE FOR ANY INDIRECT, PUNITIVE, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES IN CONNECTION WITH OR ARISING OUT OF THIS AGREEMENT (INCLUDING LOSS OF BUSINESS, REVENUE, PROFITS, USE, DATA OR OTHER ECONOMIC ADVANTAGE), HOWEVER CAUSED AND REGARDLESS OF THE THEORY OF LIABILITY, EVEN IF THE COMPANY HAS BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND EVEN IF ANY EXCLUSIVE REMEDY PROVIDED FOR HEREIN FAILS OF ITS ESSENTIAL PURPOSE. 11. INDEMNIFICATION BY DISTRIBUTOR. Distributor will indemnify, defend and hold harmless the Company and/or any of its Affiliates from and against any and all claims, damages and expenses (including reasonable attorneys' fees and costs of litigation) by any third party resulting from any acts or omissions of Distributor relating to its activities in connection with this Agreement, Distributor's breach of this Agreement, or Distributor's misrepresentations relating to the Company, the Products or this Agreement, regardless of the form of action. Distributor will be solely responsible for any claims, warranties or representations made by Distributor or Distributor's representatives or agents which differ from the warranties provided by the Company in the applicable end user license agreement. 12. INFRINGEMENT. The Company agrees to defend or, at its option, settle any claim or action against Distributor to the extent arising from a third party claim that a permitted use of a Product by End Users infringes any U.S. patent or copyright, provided the Company has control
of such defense or settlement negotiations and Distributor gives the Company prompt notice of any such claim and provides reasonable assistance in its defense. In the event of such a claim of infringement, the Company, at its option, may provide Distributor with substitute Products reasonably satisfactory to Distributor to replace those affected Products then in Distributor's inventory. The Company will not be liable under this Section if the infringement arises out of Distributor's activities after the Company has notified Distributor that the Company believes in good faith that Distributor's activities will result in such infringement. The foregoing states the entire liability of The Company with respect to infringement of intellectual property rights.
13. TRADEMARKS. 13.1. Company Trademarks. Subject to the terms and conditions of this Agreement, the Company grants Distributor a nonexclusive license for the term of this Agreement to use the Company's trademarks, trade names, service marks, and/or service names (“Marks”) in Distributor marketing of the Products, provided that such use is in accordance with the Company's trademark usage guidelines then in effect. Such use must reference the Marks as being owned by the Company. Nothing in this Agreement grants Distributor ownership or any rights in or to use the Marks, except in accordance with this license, and Distributor use of the Marks will inure to the benefit of the Company. The rights granted to Distributor in this license will terminate upon any termination or expiration of this Agreement or otherwise by a written notice from the Company. Upon such termination or expiration, Distributor will no longer make any use of any Marks. The Company will have the exclusive right to own, use, hold, apply for registration for, and register the Marks during the term of, and after the expiration or termination of, this Agreement; Distributor will neither take nor authorize any activity inconsistent with such exclusive right. 13.2. Private Label. Distributor shall be allowed to market and sell the Products under its own trademark, provided that: (a) the Company pre approved such use in writing; (b) any costs to be incurred by the Company with respect to such use, shall be borne by Distributor, including with respect to packaging; (d) any such use shall always include “By SMA”, or other similar addition as required by the Company, on the Product package, marketing materials, web site, documentation and such other materials which refer to the Products. 14. RELATIONSHIP OF PARTIES. This Agreement does not constitute either party the agent of the other, or create a partnership, joint venture or similar relationship between the parties, and neither party will have the power to obligate the other in any manner whatsoever. Distributor acknowledges and agrees that its relationship with the Company is that of an independent contractor, and Distributor will not act in a manner that expresses or implies a relationship other than that of an independent contractor. The Company and Distributor acknowledge and agree that: (a) Distributor is permitted to promote and sell products and services of companies other than the Company’s (b) Distributor is not required to promote the Company products or services exclusively; and (c) Distributor’s decision to devote all or some of its business efforts to the products or services of any particular company is solely in the discretion of Distributor.
15. NON-COMPETE. Distributor hereby undertakes, during the term of this Agreement and for the period of twelve (12) months thereafter, not to, directly or indirectly, represent, offer to represent, market, sell, distribute to any third party or otherwise engage with products that are similar in function or otherwise compete directly with the Products. 16. TERM AND TERMINATION 16.1. Term. This Agreement shall be effective for a term of one (1) year from the Effective Date. This Agreement may be renewed for additional periods upon the mutual written agreement of the parties, although each party acknowledges that the other is not under any obligation to do so. 16.2. Events of Termination. Either party will have the right to terminate this Agreement if: (a) the other party breaches any material term or condition of this Agreement and fails to cure such breach within thirty (30) days after written notice; (b) Either party will have the right to terminate this Agreement if the other party becomes the subject of a voluntary petition in bankruptcy or any voluntary proceeding relating to insolvency, receivership, liquidation, or composition for the benefit of creditors; or the other party becomes the subject of an involuntary petition in bankruptcy or any involuntary proceeding relating to insolvency, receivership, liquidation, or composition for the benefit of creditors, if such petition or proceeding is not dismissed within sixty (60) days of filing. 16.3. Effect of Termination. Upon termination of this Agreement, Distributor will cease all advertising, marketing and resale of the Products. Termination of this Agreement will not effect either party's rights or obligations with respect to Products distributed by Distributor prior to the effective date of the termination. 16.4. Survival. Expiration or termination of this Agreement will not relieve either party from its obligations arising hereunder prior to such expiration or termination. Rights and obligations which by their nature should survive will remain in effect after termination or expiration of this Agreement. 17. ASSIGNMENT. Neither this Agreement nor any rights or obligations of Distributor hereunder shall be assignable or transferable by Distributor, in whole or in part, by operation of law or otherwise, without the prior written consent of the Company. Any attempted assignment, subcontract or other transfer of this Agreement or any of Distributor's rights or obligations hereunder will be void ab initio and will be considered a material breach of this Agreement. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their permitted successors and assigns. Without limiting the foregoing, the Company shall have the right to assign and transfer this entire Agreement to an Affiliate by providing a seven (7) days prior written notice. 18. NOTICES. All notices under this Agreement will be deemed given when delivered personally, sent by confirmed facsimile transmission, or sent by certified or registered (air) mail or nationally-recognized express courier, return receipt requested, to the address shown below or as may otherwise be specified by either party to the other in accordance with this section.
Notwithstanding the foregoing, the Company may give notice of changes in Prices, Product descriptions, order procedures, delivery procedures and other routine events and procedures by way of email. 19. FORCE MAJEURE. The Company shall not be liable for failure or delay in performance of any of its obligations hereunder if such delay or failure to perform is caused by circumstances beyond its control. Distributor shall be required to accept any delayed shipment or delivery made within a reasonable time. 20. GOVERNING LAWSS. This Agreement shall be governed by and construed and enforced in accordance with the laws of the State of New York, U.S.A. The parties agree that any legal action or proceeding with respect to this Agreement may be initiated only in the federal or state courts located in New York City, New York. By execution and delivery of this Agreement, the parties submit to and accept with regard to any such action or proceeding the exclusive jurisdiction of such courts. If any legal action or proceeding is initiated, the prevailing party shall be entitled to all attorney fees, court costs, and expenses in addition to any other relief to which such prevailing party may be entitled. 21. EQUITABLE RELIEF. Distributor acknowledges that any breach or threatened breach of this Agreement involving an unauthorized use of Confidential Information or the Company intellectual property will result in irreparable harm to the Company for which damages would not be an adequate remedy, and therefore, in addition to its rights and remedies otherwise available at law, the Company will be entitled to seek injunctive or other equitable relief, as appropriate, and Distributor hereby waives the right to require the Company to post a bond. If the Company seeks injunctive or other equitable relief in the event of a breach or threatened breach of this Agreement by Distributor involving an unauthorized use of Confidential Information or the Company intellectual property, Distributor agrees that it will not allege in any such proceeding that the Company’s remedy at law is adequate. If the Company seeks any equitable remedies, it will not be precluded or prevented from seeking remedies at law, nor will the Company be deemed to have made an election of remedies. 22. COUNTERPARTS. This Agreement may be executed in several counterparts, all of which taken together shall constitute one single agreement between the parties. 23. ENTIRE AGREEMENT; WAIVER. This Agreement constitutes the entire agreement and understanding of the parties with respect to the subject matter hereof and supersedes and terminates all other prior commitments, arrangements or understandings, both oral and written, between the parties with respect thereto. This Agreement may not be modified or amended except by an instrument in writing executed by each of the parties. None of the provisions of this Agreement shall be deemed to have been waived by any act or acquiescence on the part of either party, their agents or employees, but may be waived only by an instrument in writing signed by an officer of the waiving party. No waiver of any provision of this Agreement on one occasion shall constitute a waiver of any other provision or of the same provision on another occasion.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed by their dulyauthorized representatives as of the Effective Date.
______________________________ Distributor By: __________________
________________________________ ______________, Inc. By: _________________
Initial Stock order upon execution of this Agreement: ___ units.
Q1 Year 2009
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