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____________________________Distributor Agreement
DISTRIBUTOR AGREEMENT by and between
________________________________, T/A "_____________" Software (hereinafter,
____________) a _______________ corporation with its principal place of business at
________________, in the city of ______________, in the State of _______________, and
, Distributor, a corporation with its
principal place of business at .
WHEREAS, ___________ has developed certain computer programs and related
documentation more particularly described in Appendix A attached hereto (the "Products") and
desires to grant Distributor the right to market and distribute the Products; and WHEREAS, Distributor is in the business of marketing and distributing computer-related
products and desires to have ___________ grant to it the right to market and distribute the
Products. NOW, THEREFORE, in consideration of the mutual promises set forth herein, the parties
hereto agree as follows:
1. DEFINITIONS
As used in this Agreement:
(a) The term "Agreement" means this Agreement including all the
Appendices attached hereto;
(b) The term "Products" means the software and related materials described in
Appendix A annexed hereto, and shall include any Enhancements which
___________ has announced or may announce during the term of this Agreement;
(c) The term "Area" means the territory described in Appendix B annexed
hereto;
(d) The term "Customer" means any end-user of the ___________ Products;
(e) The term "Documentation" means the standard materials which
___________ has published or may publish, during the term of this Agreement,
for Customer's use with the ___________ Products, including any user manuals
or technical manuals for the ___________ Product;
(f) The term "Effective Date" means the date upon which this Agreement is
executed by the last party to sign;
(g) The term "Enhancements" means all improvements, changes, revisions,
modifications, replacements and updates relating to ___________'s Products and
Documentation.
(h) The term "Inventions" means discoveries, improvements and ideas
(regardless of whether or not patentable or copyrightable) relating to any part of
the business or activities of ___________.
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(I) The term "Competitor" means any person, firm or organization (or
division thereof) engaged in or about to become engaged in research on or the
production and/or sale of any product with which Distributor's license with
___________ has been directly concerned, or with respect to which Distributor
has acquired Confidential Information by reason of Distributor's license with ___________.
(J) The terms "Business or Activities" of ___________ means present and
past areas of involvement as described in 1(h), above.
(k) The term "Confidential Information" means any information, technical
data or know-how of ___________, including without limitation, ___________
customers, mailing lists, research, products, software, services, development,
engineering, marketing or finances which is disclosed by ___________ whether
directly or indirectly in writing, orally or by drawings or inspections of parts or
equipment to the Distributor.
2. LICENSE
2.1 Distribution License
Upon the terms and subject to the conditions of this Agreement, ___________
hereby grants to Distributor a non-exclusive, non-transferrable right and license to
market and distribute the Products. Distributor shall only distribute the Products
to end-users (the "End-Users") who enter into an End-User License Agreement
(as hereinafter defined), provided by ___________ solely to Distributor
hereunder, the software Products shall be in executable object code form only and
Distributor shall have no other right to the source code of such Products. The
software Products distributed to End-Users shall be in executable object code
form only. Distributor shall not modify, translate, decompile, nor create or
attempt to create, by reverse engineering or otherwise, the source code from the
object code of the Products supplied hereunder, or adapt the Products in any way
or for use to create a derivative work. Distributor may not, and may not permit
End-Users to, use, reproduce, sublicense, distribute or dispose of the Products, in
whole or in part, except as expressly permitted under this Agreement. Nothing
herein shall be interpreted to include, and ___________ does not hereby grant to
Distributor, any right or license to enter into a VAR, OEM, or other redistribution
agreement or license.
2.2 The Territory
Distributor may market and distribute the Products solely within the geographical
limits set forth in Appendix B attached hereto (the "Territory"). Nothing
contained in this Agreement shall prohibit ___________ from licensing or
distributing the Products or from appointing any third party(ies) to do same within
the Territory or elsewhere. ___________ retains the right, in its sole discretion, to
change the Territory assigned to Distributor upon sixty (60) days prior written
notice to Distributor.
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2.3 License of the Products to End-users
In connection with Distributor's license and distribution of the Products to
End-Users, Distributor will have End-Users execute an End-User License
Agreement in the form attached hereto as Appendix E (the "Product Warranty"
and "Software License Agreement"). Distributor may not negotiate the terms of
the End-User License Agreement with any prospective End-User or agree to any
conflicting, different or additional terms from those set forth in the End-User
License Agreement without ___________'s prior written consent. ___________
shall have no liability to Distributor in the event any prospective End-User refuses
to agree to enter into an End-User License Agreement.
2.4 Product Changes
___________ retains the right, in its sole discretion, to upgrade or modify the
Products from time to time. In addition, upon thirty (30) days prior written notice
to Distributor, ___________ may add or delete Products from Appendix A. Upon
receipt of any such notice of an upgrade or modification, or upon the expiration of
the notice period set forth above for additions or deletions to Appendix A,
Distributor shall cease to market and distribute earlier versions of the Products
and/or Products deleted from Appendix A.
2.5 License to Use Trademark and Trade Name
Any and all trademarks and trade names which ___________ uses in connection
with the license granted hereunder are and remain the exclusive property of
___________. Nothing contained in this Agreement shall be deemed to give
Distributor any right, title or interest in any trademark or trade name of
___________ relating to the Products. Subject to notice from ___________ in
writing which modifies or cancels such authorization, during the term of this
Agreement, Distributor may use the trademarks and trade names specified by
___________ in writing for normal advertising and promotion of Products.
3. BEST EFFORTS The Distributor acknowledges that the territory is the area of its principal
responsibility and agrees to use its best efforts to promote the sale of the
___________'s Products and the goodwill of ___________ in the territory. In
accordance with this understanding, the Distributor agrees not to directly or
indirectly sell, lease, license or otherwise deal in products which in the reasonable
discretion of the ___________ are competitive with ___________'s Products.
4. ___________'s PRODUCTS
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___________'s Products referred to in this Agreement includes those systems set
forth in Appendix A. Appendix A may be amended from time to time by ___________.
5. PROMOTIONAL AND SALES MATERIALS 5.1 Materials
___________ agrees to supply to Distributor, without charge (except for shipping
costs), a limited number of ___________'s current sales promotion materials, and
any other materials that may be required for the sale of ___________'s Products.
5.2 Reproduction and Alteration
The Distributor may reproduce the materials described in 5.1, above, for the
purpose of promoting ___________ Products. However, the Distributor may
NOT alter ___________ promotional and sales material without the prior written
consent of ___________. The Distributor is allowed the limited right to
remove the ___________ address, telephone and fax numbers located on selected
promotional materials and replace with Distributors own reference.
6. PRICE, PAYMENT AND SHIPMENT
6.1 Price
___________ shall, in its sole discretion, establish the prices for the Products (the
"Prices") and the current Prices are set forth in Appendix C. ___________ may
increase or decrease the Prices upon thirty (30) days written notice to Distributor.
6.2 Orders, Payment and Shipment
Upon ___________'s receipt of a written order from Distributor (each an "Order")
together with a copy of an executed End-User License Agreement (if required),
___________ will ship to Distributor the designated quantities of the Products.
At Distributor's expense, the Products shall be shipped by ___________ to
Distributor F.O.B. origin, freight pre-paid, with risk of loss to pass to Distributor
upon delivery of the Products by ___________ to a common carrier. The terms
and conditions of this Agreement shall apply to all Orders submitted to
___________ by Distributor and supersede any different or additional terms on
any Distributor Order form. Orders issued by Distributor to ___________ are
solely for the purpose of requesting delivery dates and quantities. All Orders shall
be subject to acceptance by ___________. ___________
shall use reasonable efforts to deliver accepted Orders but shall not be liable for
any damages to Distributor or to any third party caused by ___________'s delay
or error in filling, or failure to fill, any Orders for any reason. ___________ shall
have no obligation to accept any Order. Full payment of the Price for all Orders of
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the Product and associated shipping costs are due and payable by Distributor to
___________ prior to shipment. All other fees and expenses payable hereunder
for which ___________ issues an invoice to Distributor shall be due and payable
thirty (30) days from the date of the invoice. A late payment charge of the lessor
of one and one-half percent (1.5%) per month or the highest interest rate allowed
by applicable law shall be charged upon all unpaid amounts due hereunder for
more than thirty (30) days. Distributor shall reimburse ___________ for any
out-of-pocket expenses incurred at Distributor's request, including, without
limitation, telephone, shipping, insurance and travel-related expenses.
6.3 Inspection and Acceptance Distributor shall inspect all Products immediately upon delivery and shall, within
seven (7) calendar days, give written notice to the common carrier and
___________ of any claim for damages or shortages. Distributor shall give
written notice to ___________ within thirty (30) calendar days of delivery in the
event that any Product does not conform with the terms of this Agreement. If
Distributor fails to give any such notice the Products shall be deemed accepted for
all purposes of this Agreement.
6.4 Taxes
In addition to the Price and other fees payable hereunder, Distributor shall pay
any federal, state, local or other duties and excise taxes, now or hereafter applied
on the sale, transportation, import, export, licensing or use of the Products
including sales tax, value added tax or similar tax. Any taxes imposed by federal,
state or any local government or any amount in lieu thereof, including interest and
penalties thereon, paid or payable at any time by ___________ in connection with
___________'s license to Distributor, exclusive of taxes based on ___________'s
net income, shall be borne by Distributor.
6.5 Commission
The Distributor shall receive a sales commission from ___________ based upon
the current price list at time of order, and in accordance with the "Commission
Schedule" set forth in Appendix D (the "Commission Schedule").
6.6 "Trial Basis" Sales and Return Policy
Returns of any item from the Distributor or its customer requires prior approval of
___________. All "Trial Basis" products sales that may be offered from time to
time by ___________ through its Distributor, must be directed through the
Distributor back to ___________. Without exception, the return of product must
be received by ___________ within the time specified and the promotion terms
stated by ___________ at the time of the purchase and delivery to the Distributor.
It is the responsibility of the distributor to become familiar with the Return Policy
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conditions stated within each "Trial Basis" promotion. ___________ retains the
right to change the terms of the Return Policy for each promotion.
7. DISTRIBUTOR OBLIGATIONS 7.1 Distributor's Qualifications
The distributor represents that it has the technical skill, qualified personnel, and
sales facilities required to act as a Distributor of ___________'s Products, and
agrees to provide and maintain appropriate sales and customer support services in
the Territory to represent ___________ in the best way.
7.2 Marketing Efforts
Distributor agrees to use its best efforts to promote the sale of the Products in the
Territory. Distributor agrees to permit ___________ to review all of Distributor's
promotion and advertising material for the Products prior to use. Distributor shall
not use and shall withdraw and retract any promotion or advertising that
___________ finds unsuitable, or is in breach of the terms of this Agreement.
7.3 Disclosure
The Distributor shall disclose to ___________ the Name, Address, Telephone
Number, and contact person of each customer/end-user with each formal Purchase
Order to ___________ so that ___________ may inscribe the necessary
information onto the software product for customer/end-users Authorization to
install and run the program, as well as to identify the manufacturer warranty
provided.
7.4 Reports of Customer/End-User Dissatisfaction
The distributor shall immediately make known to ___________ any
customer/end-user dissatisfaction with the Product(s) or support services provided
to customer/end-user under the terms of this Agreement. The Distributor shall
also immediately furnish ___________ with copies of all correspondence or other
such documentation that relates in any way to customer/end-user dissatisfaction
with the Product(s) or support services provided to customer/end-user under the
terms of this Agreement.
7.5 Prohibited Practices Distributor may not make any contracts or commitments on behalf of
___________ nor make any warranties or other representations regarding the
Products other than those authorized herein or by ___________ in a separate
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writing. The Distributor will not remove or alter any copyright text or
trademarks of ___________ contained on any ___________ Product or in any
___________ promotional and Sales Literature. The Distributor shall not
discount, inflate or deviate from such terms or prices stipulated within Appendix
C (the "Price List"), without the prior written authorization of ___________.
8. END-USER TRAINING AND ___________ CONSULTING SERVICES ___________ shall be available at its then current standard rates to provide
training, special enhancements, customization and other special work or services
to Customer/End-user which are not covered by this Agreement.
9. AUDIT RIGHTS
Distributor shall maintain accurate books and records of all licenses granted for
the Products, End-Users receiving maintenance. Upon reasonable notice to
Distributor, and no more frequently than twice a year, at ___________'s option,
Distributor shall make such books and records available to ___________, at
Distributor's place of business during normal business hours, to audit the
payments being made by Distributor hereunder.
10. RETAIL PRICE CHANGE
10.1 Notice
___________ agrees to provide Distributor thirty (30) days' prior written notice of
its intention to change its then prevailing published retail prices for the Products.
10.2 Relief from Price Change
In the event of a retail price reduction, ___________ agrees to credit Distributor
with the difference between the new discounted purchase price and the old
discounted purchase price for all items ordered, but not yet delivered, on the date
of said price reduction. In the event of retail price increase, ___________ will
honor and fill, at the existing purchase price, all orders presented by Distributor,
whether or not delivered, prior to the date of said price increase.
11. FINDER'S FEE 11.1 Scope
Distributor may act as an intermediary in introducing ___________ to
value-added resellers or other distributors ("Dealers"). Such potential Dealers
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shall negotiate mutually acceptable agreements directly with ___________.
11.2 Fee and Payment
In the event that ___________ consummates an agreement with a Dealer referred
to ___________ by Distributor in accordance with paragraph 9.1 hereof,
___________ shall pay Distributor a fee of __________ percent (_____%) of all
net proceeds ___________ receives within the first six (6) months of the term of
the agreement between ___________ and such Dealer. For purposes of this
Section, net proceeds shall be gross revenues minus all fees for maintenance,
custom design and programming, training, freight and other such incidental fees.
___________ shall make finder's fee payments within sixty (60) days of receipt of
payment from such Dealer.
12. OWNERSHIP AND PROPERTY RIGHTS
12.1 Ownership
___________ represents and warrants that it has all necessary rights in and to all
copyrights, patents and other proprietary rights associated with the Products that
are necessary to market, distribute and license the Products. ___________ has the
unrestricted right and authority to enter into this Agreement and to grant the rights
and licenses hereunder with respect to the Products.
12.2 Property Rights Distributor acknowledges and agrees that the Products and all other items licensed
hereunder and all copies thereof constitute valuable trade secrets or proprietary
and confidential information of ___________; that title thereto is and shall remain
in ___________; and that all applicable copyrights, trade secrets, patents and
other intellectual and property rights in the Products and all other items lice nsed
hereunder are and shall remain in ___________. All other aspects of the Products
and all other items licensed hereunder, including without limitation, Products,
methods of processing, the specific design and structure of individual Products
and their interaction and the unique programming techniques employed therein, as
well as screen formats are and shall remain the sole and exclusive property of
___________ and shall not be sold, revealed, disclosed or otherwise
communicated, directly or indirectly, by Distributor to any person, company or
institution whatsoever, other than for the purposes set forth herein.
It is expressly understood and agreed that no title to, or ownership of, the
Products, or any part thereof, is hereby transferred to Distributor. Distributor
acknowledges and agrees that all persons who use the Products must be licensed
by the current ___________ License Agreement set forth in Schedule "E".
12.3 Unauthorized Copying
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Distributor agrees that it will not copy, modify or reproduce the Products in any
way, except as otherwise provided herein. However, Distributor is not responsible
for the disclosure, use, modification or copying of the Products by its customers
or any other third party so long as Distributor had no prior knowledge that its
customers or any other third party intended to disclose, use, modify, or copy the
Products. Distributor agrees to notify ___________ immediately of any
circumstances Distributor has knowledge of relating to any unauthorized use or
copying of the Products by any person or entity not authorized to do so.
Distributor allows ___________ to take, at ___________'s option and under
___________'s control and discretion, any legal action necessary to prevent or
stop the unauthorized use or copying of the Products by any third person or entity
who or which has obtained the Products due, in substantial part, to the
Distributor's chain of distribution. If Distributor has actual or constructive
knowledge of the unauthorized possession, use, or knowledge of the Products or
any other item or information furnished or made available to Distributor under
this Agreement by any third-party or any Distributor customer and if the
Distributor fails to properly notify ___________ immediately of such possession,
use, or knowledge, the Distributor shall indemnify ___________ in respect to any
loss suffered by ___________, and caused or contributed to whether directly or
indirectly by such unauthorized reproduction, use, disclosure or improvement of
the Product, and in respect to all legal costs incurred in connection therewith.
All provisions of this section 12.3 shall survive the termination of this agreement,
whether by expiration or otherwise.
12.4 Protection of Software
Distributor agrees that all copies of the Products sold to Distributor hereunder will
remain in their sealed packages, as provided by ___________ to Distributor, until
sold.
13. WARRANTY ___________ will enclose, as part of the Products package, a warranty with
respect to the physical media enclosed therein which is identical to the warra nty
contained in the then current ___________ License Agreement (a copy of which
is set forth in Appendix E). ___________ agrees to fulfill its responsibilities
under the warranty delivered with the Products, as the same shall be modified
from time to time. Distributor acknowledges and agrees that the warranty
furnished by ___________ with copies of the Products is the only warranty made
(or to be made) with respect thereto. Distributor agrees to include the current
___________ License Agreement with every copy of the Products it distributes
and not to make any other representations or warranties with respect to the
Products.
13.1 Disclaimer of Additional Warranties
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OTHER THAN THOSE WARRANTIES SET FORTH IN PARAGRAPH
13, ___________ SPECIFICALLY DISCLAIMS ALL WARRANTIES
EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO,
IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR
A PARTICULAR PURPOSE WITH RESPECT TO DEFECTS IN THE
DISKETTE OR OTHER PHYSICAL MEDIA AND DOCUMENTATION,
OPERATION OF THE PRODUCTS, AND ANY PARTICULAR
APPLICATION OR USE OF THE PRODUCTS. IN NO EVENT SHALL
___________ BE LIABLE FOR ANY LOSS OF PROFIT OR ANY OTHER
COMMERCIAL DAMAGE, INCLUDING BUT NOT LIMITED TO
SPECIAL, INCIDENTAL, CONSEQUENTIAL OR OTHER DAMAGES.
___________'S MAXIMUM LIABILITY HEREUNDER IS EXPRESSLY
LIMITED TO THE AMOUNT PAID UNDER THIS AGREEMENT BY
DISTRIBUTOR TO ___________ WITHIN THE THREE (3) MONTH
PERIOD IMMEDIATELY PRECEDING THE CAUSE GIVING RISE TO
THE CLAIM.
14. CONFIDENTIALITY AND PROPRIETARY RIGHTS
14.1 Confidentiality
Distributor acknowledges that in the course of dealings between the parties,
Distributor may acquire information about ___________, its business activities
and operations, its technical information and trade secrets, including but not limit
to the Products, all of which are highly confidential and proprietary to
___________ (the "Confidential Information"). Confidential Information shall not
include information generally available to or known by the public, or information
independently developed outside the scope of this Agreement. Distributor shall
hold all such Confidential Information in strict confidence and shall not reveal the
same except pursuant to a court order or upon request of ___________. The
Confidential Information shall be safeguarded with at least as great a degree of
care as Distributor uses to safeguard its own most confidential materials or data
relating to its own business, but in no event less than a reasonable degree of care.
14.2 Specific Remedies
If Distributor commits a breach of any of the provisions of Section 14. 1
above, ___________ shall have, in addition to all other rights in law and equity,
(a) the right to have such provision specifically enforced by any court having
equity jurisdiction, it being acknowledged and agreed that any such breach will
cause irreparable injury to ___________ and that money damages will not
provide an adequate remedy, and (b) the right to require Distributor to account for
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and pay to ___________ all compensation, profits, monies or other tangible
benefits (collectively "Benefits") derived or received as the result of any
transactions constituting a breach of any of the provisions of this Article 14, and
Distributor hereby agrees to account for and pay such Benefits.
15. TERM AND TERMINATION
15.1 Term
This Agreement shall have an initial term of one (1) year from the Effective Date
(the "Initial Term"), and shall thereafter automatically renew for successive one
(1) year periods (each a "Renewal Term"), unless earlier terminated in accordance
with the terms of this Agreement. Either party may cancel this Agreement
effective on the last day of the Initial Term, or any Renewal Term, by serving
written notice of such termination on the other party at least ninety (90) days prior
to the effective date thereof.
15.2 ___________ Termination This Agreement may be terminated immediately by ___________ under any of
the following conditions:
(a) if one of the parties shall be declared insolvent or bankrupt;
(b) if a petition is filed in any court to declare one of the parties bankrupt or for a
reorganization under the Bankruptcy Law or any similar statute and such petition
is not dismissed in ninety (90) days or if a Trustee in Bankruptcy or a Receiver or
similar entity is appointed for one of the parties;
(c) if Distributor does not pay ___________ monies due and owing, ___________
shall have the right to terminate this Agreement on fourteen (14) days advance
written notice. Such notice shall have no effect if Distributor brings the account
current within said period; or
(d) if Distributor breaches the provisions of Sections 14.1 of this Agreement; or
(e) if Distributor fails in any calendar quarter to purchase the minimum quantity
of Products as set forth in Appendix F ("Purchase Schedule") ___________
shall have the right to terminate this Agreement upon thirty (30) days advance,
written notice; however, if Distributor places sufficient orders for immediate
delivery and thereby brings the total for that period to the requisite total such
notice shall have no effect; or
(f) if Distributor otherwise materially breaches the terms of this Agreement, and
such breach is not cured within thirty (60) days after written notice of such breach
is given by ___________.
15.3 Duties Upon Termination Upon termination of this Agreement for any reason, the parties agree to continue
their cooperation in order to effect an orderly termination of their relationship.
Distributor shall immediately cease representing itself as a distributor of the
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Products for ___________; however, Distributor may continue to market and
distribute its inventories of the Products for a period not in excess of two (2)
months. At the end of such period, Distributor shall return all copies of
promotional materials, marketing literature, written information and reports
pertaining to the Products that have been supplied by ___________.
16. INDEMNIFICATION
16.1 Copyright Indemnification
___________ shall indemnify, defend and hold Distributor harmless from any
claims, demands, liabilities or expenses, including reasonable attorneys' fees,
directly resulting from any infringement or violation of any copyright with respect
to the Products, as so awarded against Distributor by a court of competent
jurisdiction, and provided Distributor is not in breach of this Agreement.
Following a decision by a court of competent jurisdiction that the Products
infringe any third party's copyright, ___________ shall, in its sole discretion:
(a) procure for Distributor the right to continue to use, distribute and sell the
Products at no additional expense to Distributor;
(b) provide Distributor with a non-infringing version of the Products with
substantially similar functionality; or
(c) notify Distributor that the Products are being withdrawn from the market and
immediately terminate this Agreement.
16.2 Cooperation by Distributor
Notwithstanding Section 16. 1 of this Agreement, ___________ is under no
obligation to indemnify and hold Distributor harmless unless:
(a) ___________ shall have been promptly notified of the suit or claim by
Distributor and furnished by Distributor with a copy of each communication,
notice or other action relating to said claim;
(b) ___________ shall have the right to assume sole authority to conduct the trial
or settlement of such claim or any negotiations related thereto at ___________'s
expense; and
(c) Distributor shall provide reasonable information and assistance requested by
___________ in connection with such claim or suit.
16.3 Distributor Indemnification
Distributor shall indemnify, defend and hold ___________ harmless from any
claims, demands, liabilities or expenses, including reasonable attorneys' fees,
incurred by ___________ as a result of any claim or proceeding against
___________ arising out of or based upon (i) the combination, operation or use of
the Products with any hardware, products, programs or data not supplied or
approved in writing by ___________, if such infringement would have been
avoided but for such combination, operation or use or (ii) the modification of the
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Products by Distributor or End-Users.
17. FORECASTS OF EXPECTED ORDERS
The Distributor agrees to furnish ___________ with monthly reports indicating its
best forecast of future purchase orders.
18. MINIMUM PURCHASES The Distributor must make a minimum purchase of the Product in each calendar
quarter as set forth in Appendix F (the "Purchase Schedule"). Upon twelve (12)
months advance written notice, ___________ shall have the right to change the
minimum levels of purchase as set forth in Appendix F.
19. INSURANCE The Distributor agrees to carry broad coverage accident and liability insurance in
an amount not less than two million dollars ($2,000,000.00) per occurrence, and
to make copies of such policies available to ___________ on request. At
___________'s request, Distributor must name ___________ an insured under
such policy, if necessary to protect ___________'s interest.
20. CERTIFICATE OF AUTHORITY As an express pre-condition to the execution of this Agreement and to acceptance
of this Agreement by ___________, the Distributor shall furnish to ___________,
prior to execution hereof, a certified to be true copy of Distributor's Tax
Certificate of Authority of Re-sellers, and/or such other documentation that
___________ deems necessary to verify Distributor's valid status as a re-seller for
tax purposes.
21. GENERAL
21.1 Force Majeure
Neither party shall be liable or deemed to be in default for any delay or failure in
performance under this Agreement or interruption of service resulting directly or
indirectly from acts of God, or any causes beyond the reasonable control of such
party.
21.2 Jurisdiction and Venue
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This Agreement shall be governed by and construed in accordance with the laws
of the State of _______________. Jurisdiction for litigation of any dispute,
controversy or claim arising out of or in connection with this Agreement, or the
breach thereof shall be only in the Federal or the State Court with competent
jurisdiction located in _______________.
21.3 Entire Agreement
This Agreement, including the Appendices attached hereto, constitutes the entire
agreement between the parties with respect to the subject matter hereof and
supersedes all previous proposals, both oral and written, negotiations,
representations, commitments, writings and all other communications between the
parties. This Agreement may not be modified except by a writing signed by a duly
authorized representative of each of the parties.
21.4 Independent Contractors It is expressly agreed that ___________ and Distributor are acting hereunder as
independent contractors and under no circumstances shall any of the employees of
one party be deemed the employees of the other for any purpose. This Agreement
shall not be construed as authority for either party to act for the other party in any
agency or other capacity, or to make commitments of any kind for the account of
or on behalf of the other except to the extent and for the purposes provided for
herein. Distributor agrees that it is not a partner, broker, employee or
franchisee of ___________
21.5 Assignment
This Agreement is not assignable by either party hereto without the consent of the
other, except that this Agreement shall be assignable by ___________ to an
affiliate entity or upon the sale of the right to license and sublicense the Product s
to the purchaser of said right. This Agreement shall be binding upon and inure to
the benefit of the parties and their respective successors.
21.6 Severability and Waiver If any provision of this Agreement is determined by a court of competent
jurisdiction to be invalid or unenforceable, such determination shall not affect the
validity or enforceability of any other part or provision of this Agreement. No
waiver by any party of any breach of any provisions hereof shall constitute a
waiver unless made in writing signed by the party.
21.7 Attorneys' Fees
In any action between the parties to enforce any of the terms of this Agreement,
the prevailing party shall be entitled to recover expenses, including reasonable
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attorneys' fees.
21.8 Appendices
Appendix A (the "Products")
Appendix B (the "Territory")
Appendix C (the "Price List")
Appendix D (the "Commission Schedule")
Appendix E (the "Product Warranty/Software License Agreement")
Appendix F (the "Purchase Schedule")
IN WITNESS WHEREOF , the parties hereto have executed this Agreement by a
duly authorized representative as of the date set forth above.
DISTRIBUTOR ___________________________
T/A "____________" Software
_____________________ _____________________ ______________
By:__________________ By:___________________
Name:________________ Name:_________________
Title Title:
F.I.D. #: F.I.D.#:
