Electronic Software Distribution Agreement
Agreement made on __________________ (date), between ABC, Inc ., a corporation
organized and existing under the laws of the state of __________________ (Name of
Distributor), with its principal office located at ________________________________
(street address, city, county, state, zip code) , and referred to herein as Distributor, and
__________________ (Name of Vendor) , a corporation organized and existing under
the laws of the state of __________________ (Name), with its principal office located at
_____________________________________________ (street address, city, county,
state, zip code) , referred to herein as Vendor.
Whereas, Vendor is the Owner of all rights (or has a license to sell) to the Software as
defined hereunder; and
Whereas, Vendor desires to enter into an Agreement with the Distributor to allow
Distributor to distribute the Software; and
Whereas, Distributor desires to obtain the right to distribute the Software;
Now, therefore, for and in consideration of the mutual covenants contained in this
agreement, and other good and valuable consideration, the receipt and sufficiency of
which is hereby acknowledged, the parties agree as follows:
I. Definitions.
A. Software is the executable object code for the Vendor’s software
identified on Exhibit A, including all subsequent versions thereof provided to the
Distributor pursuant to this Agreement.
B. Documentation: all computer readable and/or printed instructions,
manuals and other materials normally provided from time to time by Vendor to
End Users for use of the Software, and all subsequent versions thereof provided
to Distributor pursuant to this Agreement.
C. End-User License Agreement (EULA): the computer readable license
agreement provided by Vendor that governs the use of the Product by End
Users, and which is to be included with each copy of the Product sold by
Distributor hereunder.
D. Distributor Materials: computer readable materials provided by
Distributor for inclusion in an electronic package containing the Software,
Documentation, and EULA, which materials have been approved by Vendor.
E. Product: a copy of the Software, Documentation, EULA and Distributor
Materials, if any, packaged in computer readable form together for electronic
delivery on www.acme.com (or equivalent) and/or in tangible packaged form
for delivery in accordance with this Agreement, as identified on Exhibit A.
F. End User: person(s) or organization(s) that acquire a Product for use
rather than resale or distribution.
G. Vendor Trademarks: the trademarks, trade names and logos used by
Vendor in connection with the Product.
H. Territory: all countries in the world except (i) countries to which export
or re-export of any Product, or the direct products of any Product is prohibited by
the United States law without first obtaining the permission of the United States
Office of Export Administration or its successors, and (ii) countries that may be
hereafter explicitly excluded pursuant to the terms of this Agreement.
I. Dealer: person(s) or organization(s) that resell the Products.
J. Site: the Vendor’s World Wide Web Site.
K. Host Sales: sales of the Products originating from the Site.
l. Channel Sales: sales of the Product originating from a source other that
the Site.
M. Transaction: the processing at one time of a payment made by an End
User, which processing of payment may include more than one Product.
II. License.
A. Vendor hereby grants Distributor , within the Territory, a license and right
to:
1. Reproduce and distribute the Product in computer readable form to
the End Users and/or Dealers;
2. Package the Product in a computer readable form reasonably
specified by Vendor;
3. Utilize the Vendor Trademarks in connection with the replication of
the Product, packaging and distribution of the Product, in a manner
reasonably specified by Vendor; and
4. Distribute in tangible form the Product to the End Users and/or
Dealers.
B. Distributor acknowledges that the Software and Documentation are the
property of Vendor or its licensors and that Distributor has no rights in the
foregoing except for encryption software supplied by Distributor , if any, and those
expressly granted by this Agreement.
C. Under no circumstances shall the provisions of this Agreement be deemed
to require Distributor to engage in any activities in connection with the distribution
of the Products that could, in the reasonable discretion of Distributor , result in
a financial loss to Distributor or result in an unacceptably small level of
profitability for Distributor .
III. Vendor’s General Obligations.
A. Vendor shall deliver the current version of the Product to Distributor
immediately following execution of this Agreement. Vendor will provide
Distributor with: (i) copies of the Software on master diskettes (CD’s), (ii) Product
specification information in a single file, self extracting archive format, or in
another mutually agreeable computer readable form that can be reproduced
by Distributor , (iii) Documentation in a computer readable form mutually
agreeable to the parties that can be reproduced by Distributor , and (iv) all the
items and materials specified in the Requirements Checklist on Exhibit B.
B. Vendor shall provide Distributor with computer readable copies and/or
tangible packaged Products containing all new releases, updates, or revisions of
the Software and Documentation within a reasonable time after each such
release is made generally available by Vendor. Vendor will notify Distributor of its
plans for each new release, update, or revision of the Product to Distributor in
sufficient quantities on or before the date it is offered to any other distributor.
C. For Products are listed on Exhibit A as Host Sales, Vendor shall provide a
hypertext link to www.acme.com (or equivalent) on the Site (the Link ) where
Product may be purchased by End-User from Distributor . Vendor agrees to
prominently display the Link and use readable efforts to promote the Link on the
Site. Vendor agrees that no other hypertext link for sale of the Products will be
placed on the Site or elsewhere without the prior written consent of Distributor.
D. If Vendor makes any modifications, updates, or enhancements (the
Improvements) to the Product, Vendor will offer the Improvements for distribution
by Distributor on terms substantially equivalent to those provided in this
Agreement. In the event that Vendor develops or acquires any new products,
Vendor agrees to give Distributor the right of first refusal for distribution of these
products on the Site and as provided for in this Agreement with respect to the
Products.
E. Vendor shall furnish a EULA in computer readable form to Distributor
which is to be included with each copy of the Products sold by Distributor
hereunder. Vendor's linking of the Site to www.acme.com (or equivalent) shall
constitute approval of the EULA Distributor is delivering as part of the Product.
F. Vendor shall provide all support and be fully responsible for all warranty
obligations relating to the Product. Such support and warranty shall be in
accordance with Vendor's then-current published software support policy, or, in
the absence of such a policy in a reasonable manner.
G. Vendor shall provide Distributor , without charge, such technological
information, current maintenance documentation, and telephone assistance as is
necessary to enable Distributor to effectively reproduce, electronically package,
and distribute the Products as provided for in this Agreement.
IV. Warranties.
A. Vendor represents and warrants that it has the right and authority to enter
into this Agreement and to grant Distributor the rights to the Software and
Documentation granted in this Agreement.
B. Vendor represents and warrants to Distributor that the Vendor has all
rights, title, and interest in the software and Documentation or has obtained the
right to grant to Distributor the license set forth in this Agreement. As of the
execution date of this Agreement, Vendor represents and warrants that to the
best of Vendor's knowledge the Product does not infringe upon or misappropriate
the proprietary rights of any other person or organization.
C. Distributor represents and warrants that it has the right and authority to
enter into this Agreement.
D. Distributor represents and warrants that it will use its best efforts to
accurately replicate the Product.
E. Distributor represents and warrants that except for encryption software, if
any, supplied by Distributor , the products will not be altered by Distributor .
V. Initialization Fee. Vendor agrees to pay Distributor the Initialization Fee
specified on Exhibit A. Vendor agrees to allow Distributor to offset the unpaid
Initialization Fee against any or all other amounts owing to Vendor by Distributor under
this Agreement. Product available from Vendor will be installed on Distributor’s server
upon fulfillment of other obligations pursuant to this Agreement. The Initialization Fee
includes normal price changes and version updates. All programming and other
changes made after initial site setup excluding normal price changes, product addition
and version updates will be charged to Vendor at $ __________________ (Site
Maintenance). Vendor agrees to pay the billed Site Maintenance charges within
__________________ (number) days from the date of billing. In the event that Site
Maintenance is not paid for within __________________ (number) days of billing,
Vendor agrees to allow Distributor to offset the unpaid Site Maintenance against any or
all other amount owing to Vendor by Distributor under this Agreement.
VI. Processing and Payments. Sales activities shall be processed, and payments
shall be made in accordance with the provisions specified on Exhibit C.
VII. Orders by Means Other Than from Site. The Vendor shall be charged
$ __________________ for each order taken for the Products by means including, but
not limited to, orders taken by telephone, email, facsimile transmission or by means
other than from the Site, which amount shall, as applicable, be invoiced to the Vendor
by Distributor , or deducted from payments made by Distributor to the Vendor.
VIII. Records. Distributor and Vendor agree to maintain adequate books and records
relating to the distribution of the Products to End Users and Dealers, including without
limitation, books, records, and tax returns relating to returns, refunds, and sales and use
taxes. Such books and records shall be available at the principal office of each party for
inspection by the other party or its representative during normal business hours, for the
purpose of determining the accuracy of the payments required to be made pursuant to
the provisions of this Agreement. Each party shall have the right to conduct such an
audit upon __________________ (number) days advance written notice not more than
twice each year. In the event that such an audit discloses an underpayment which is
greater than __________________ %, then the party responsible for the underpayment
shall pay the underpayment and reasonable costs of such audit, otherwise the party
requesting the audit shall pay the costs of such audit.
IX. Delivery of Products. As specified in Exhibit A, Distributor and/or Vendor shall
be responsible for making digital and/or tangible delivery of the Products as follows:
A. The following provision shall apply to any Products listed on Exhibit A
for which digital delivery is to be made by Distributor :
Within twenty-four (24) hours after receipt of an order from an End
User, Distributor shall make digital delivery of the Products available to the
End User.
B. The following provisions will apply to any Products listed on Exhibit A
for which tangible delivery is to be made by Distributor :
1. The Vendor shall provide Distributor with an inventory of the
Products to be held on consignment and used by Distributor to fulfill
orders for the Products. Distributor shall be responsible for the delivery of
the Products to the End Users at the locations designed by the End User.
2. The Products shall be delivered to Distributor prepackaged and
ready for shipment and delivery to the End User. The Vendor shall be
solely responsible for the shipment of the Products to Distributor and shall
be solely responsible for all costs and expenses associated with any such
shipments. The Vendor shall bear the entire risk of loss or damage to the
Products during shipments to or from Distributor .
3. Within __________________ (number) days after the date of this
Agreement, the Vendor shall provide Distributor with such consigned
quantities of the Products as may be mutually agreed upon in writing by
Distributor and the Vendor. On a periodic basis, Distributor shall provide
an inventory detail to Vendor showing the current inventory of the
Products, Periodically, Distributor will issue consignment purchase orders
for the estimated needs of the Product to be tangibly delivered. The
Vendor shall be responsible for making prompt delivery of the Products to
Distributor .
4. All Shipments of Product to Distributor will be clearly labeled with
Distributor’s purchase order number on the outside of the box. If
Distributor is tracking serial numbers for the Products, Vendor will provide
with each shipment of the Product a complete list of the serial numbers of
the Product enclosed in the box.
5. Distributor shall have no liability of any kind whatsoever as a result
of a delay in the delivery of the Products by Vendor, or the delivery of
Products to Distributor in non-conforming condition, Upon the termination
of this Agreement, at the Vendor’s sole cost and expense, the unsold
inventory of the Products shall be returned to the Vendor.
C. The following provisions shall apply to any Products listed on Exhibit A
for which digital or tangible delivery is to be made by Vendor:
1. The Vendor shall maintain an inventory of the Products to be used
by Vendor to fulfill orders for tangible delivery of products.
2. On a daily basis, by electronic and/or facsimile transmission,
Distributor shall notify Vendor about the number of orders for the Products
made the previous day (the Order Notification ). The Order Notification
shall contain the names and delivery addresses (including, as applicable,
electronic delivery addresses) of the End Users; the names, serial
numbers, and quantity of the Products sold to particular End Users; and
the manner of the delivery to such End Users (whether digital or tangible
delivery).
3. Vendor shall be responsible for making digital or tangible delivery,
as applicable, of all Products to the End Users and Dealers identified in
the Order Notifications, and shall be responsible for all risk of loss of, or
damage to the Products during digital or tangible delivery to the End
Users. Vendor shall, as specified in the Order Notification, make digital
delivery or tangible shipment to the End User of all the Products within
__________________ (number) hours after receipt of the Order
Notifications.
4. Vendor shall develop, establish, and maintain such delivery
systems and procedures as may, in the discretion of Distributor , be
necessary ensure that the Products are promptly and correctly delivered,
and which enable Distributor and Vendor to immediately determine the
status of the Products during delivery. On a daily basis, by electronic
and/or facsimile transmission, Vendor shall provide a report to Distributor
which provides information about the digital deliveries and tangible
shipments of the Products made the previous day (the Shipment Reports ).
The Shipment Reports shall contain the names, and delivery addresses
(including, as applicable, electronic delivery addresses) of the End Users
or Dealers to whom the Products have been digitally delivered or tangibly
shipped; the form of delivery (whether digital or tangible delivery); the
name, address, and telephone number of carriers (in case of tangible
shipment); confirmation numbers; package tracking information; and any
other information that may from time to time be requested by the
Company.
X. Marketing Payments. If Exhibit D has been initialed by the parties and
attached to this Agreement, Vendor, and Distributor agree to the marketing payments
and marketing activities provided for on Exhibit D.
XI. Customer Service. Distributor 's policy is to provide End Users with a
__________________ (number) day right to return Products for a refund of the
purchase price paid by the End User, Returns and refunds may be made in the
discretion of Distributor . This policy is subject to modification from time to time in the
discretion of Distributor . To the extent the Vendor’s return policies are consistent with
those of Distributor then in effect, Distributor shall cooperate and assist the Vendor and
End Users with respect to Product Returns.
XII. Confidentiality.
A. Each party agrees that all binary code, inventions, algorithms, know-how
ideas, and all other business, technical and financial information it obtains from
the other party constitutes the confidential property of the disclosing party
(Confidential Information). Except as expressly permitted in this Agreement, the
receiving party will hold in confidence and not use or disclose any Confidential
Information and shall similarly bind its employee and agents. The receiving party
shall not be obligated under this Section with respect to information the receiving
party can document that:
1. Is or has become readily available to the public through no fault of
the receiving party or its employees or agents; or
2. Is received without restriction from another person or organization
lawfully in possession of such information and lawfully empowered to
disclose such information;
3. Was rightfully in the possession of the receiving party without
restriction prior to its disclosure by the disclosing party; or
4. Is independently developed by the receiving party or its employees
or agents without access to the other disclosing party's similar Confidential
Information.
Each party's obligation with respect to Confidential Information shall continue for
the shorter of __________________ (number) years from date of termination of
this Agreement or until one of the above enumerated conditions becomes
applicable. Each party acknowledges that its breach of this Section would cause
irreparable injury to the other for which monetary damages are not adequate
remedy. Accordingly, a party will be entitled to injunctive relief and other
equitable remedies in the event of a breach of the terms of this Agreement.
B. Distributor agrees not to: (i) disassemble, decompile, or otherwise reverse
engineer the Software, or otherwise attempt to learn the source code, structure,
algorithms or ideas underlying the Software; or (ii) take any action contrary to
EULA except as allowed under this Agreement.
XIII. Vendor Trademarks.
A. Distributor acknowledges that the Vendor Trademarks are trademarks
owned or licensed solely and exclusively by Vendor, Distributor agrees to use the
Vendor Trademarks only in the form and manner and with appropriate legends
as prescribed by Vendor. All use of Vendor Trademarks shall inure to the benefit
of Vendor.
B. Distributor shall not remove, alter, cover, or obfuscate any copyright notice
or other proprietary rights notice placed in or on the Products by Vendor.
XIV. Indemnification.
A. Vendor shall defend, indemnify, and hold Distributor and its successors
and assigns harmless from and against any and all liabilities, losses, damages,
costs, and expenses (including without limitation, reasonable legal fees and
expenses) associated with or incurred as a result of any claim, action, or
proceeding instituted against Distributor and its successors and assigned arising
out of or relating to the acts or failure to act of the Vendor, or any of its affiliated
companies, agents, employees or other related parties under this Agreement
including, without limitation, action, claims, or proceedings related to: (i) Vendor’s
performance of its obligations under this Agreement, (ii) the breach by Vendor of
any of the terms of this Agreement or any of the representation and warranties
contained herein; (iii) the actual or alleged infringement of any proprietary rights
arising out of Distributor 's duplication, sale, distribution, or other use of the
Product pursuant to this Agreement; or (iv) in the event the Vendor is obligated
to sales or use tax payments pursuant to the provisions of Exhibit C, any
obligation or liability of Distributor and its successors and assigns to make use
tax payments in any state indicated in Exhibit C or otherwise.
B. Distributor shall indemnify and hold Vendor harmless from and against
any and all liabilities, losses, damages, costs, and expenses (including
reasonable legal fees and expenses) associated with or incurred as a result of
any claim action, or proceeding instituted against Vendor resulting from
Distributor 's improper or unauthorized replication, packaging, marketing,
distribution, or installation of the Product, or the breach by Distributor of any of
the terms of this Agreement or any of the representations and warranties
contained herein.
C. If either Vendor or Distributor receives notice or knowledge of a claim as
described above, it will promptly notify the other party in writing and give the
other party all necessary information and assistance and the exclusive authority
to evaluate, defend, and settle such claim.
XV. Limitation of Liability. The total liability of Distributor (including its employees,
agents, and Dealers) for all claims, whether in contract, tort (including negligence and
product liability) or otherwise, arising out of, connected with, or resulting from the
distribution of the Products or the provisions of this Agreement shall not exceed the net
amount realized by Distributor hereunder. IN NO EVENT SHALL DISTRIBUTOR BE
LIABLE FOR ANY LOSS OF DATA, LOST PROFITS, OR INDIRECT, INCIDENTAL,
CONSEQUENTIAL, SPECIAL, OR EXEMPLARY DAMAGES, EVEN IF DISTRIBUTOR HAS
BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND NOTWITHSTANDING
THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY PROVIDED HEREIN.
XVI. Term and Termination.
A. This Agreement will continue in effect for __________________ (number)
years from the date hereof (Initial Term). This Agreement will be automatically
renewed for successive additional __________________ (number) year terms
(each, a Renewal Term ) unless terminated by either party upon ____________
(number) days written notice prior to the expiration of the Initial Term and
Renewal Term.
B. This Agreement may be terminated by a party immediately by written
notice to the other party upon the occurrence of any of the following events:
1. If the other party ceases to do business, or otherwise substantially
terminates its business operations;
2. If the other party shall fail to promptly secure or renew any license
registration, permit, authorization or approval for the conduct of its
business in the manner contemplated by this Agreement or if any such
license, registration, permit, authorization or approval is revoked or
suspended and not reinstated within thirty (30) days;
3. If the other party materially breaches any provision of this
Agreement and fails to fully cure such breach within _______________
(number) days of written notice describing the breach; or
4. If the other party becomes insolvent or seeks protection
under any bankruptcy laws, creditor’s arrangement, composition or
comparable proceeding, or if any such proceeding is instituted against the
other and not dismissed within __________________ (number) days.
C. Upon termination of this Agreement for any reason, Distributor will
immediately cease distribution of the Product. The termination of this Agreement
shall not in any respect whatsoever affect a party’s obligation to make payments
to the other party in connection with the distribution of Products that occurred
prior to the termination of this Agreement.
D. Termination by either party will not affect the rights of any End User
under the terms of the EULA.
XVII. Severability. The invalidity of any portion of this Agreement will not and shall not
be deemed to affect the validity of any other provision. If any provision of this
Agreement is held to be invalid, the parties agree that the remaining provisions shall be
deemed to be in full force and effect as if they had been executed by both parties
subsequent to the expungement of the invalid provision.
XVIII. No Waiver. The failure of either party to this Agreement to insist upon the
performance of any of the terms and conditions of this Agreement, or the waiver of any
breach of any of the terms and conditions of this Agreement, shall not be construed as
subsequently waiving any such terms and conditions, but the same shall continue and
remain in full force and effect as if no such forbearance or waiver had occurred.
XIX. Governing Law. This Agreement shall be governed by, construed, and enforced
in accordance with the laws of the State of __________________ (name of state).
XX. Notices. Unless provided herein to the contrary, any notice provided for or
concerning this Agreement shall be in writing and shall be deemed sufficiently given
when sent by certified or registered mail if sent to the respective address of each party
as set forth at the beginning of this Agreement.
XXI. Mandatory Arbitration . Any dispute under this Agreement shall be required to
be resolved by binding arbitration of the parties hereto. If the parties cannot agree on
an arbitrator, each party shall select one arbitrator and both arbitrators shall then select
a third. The third arbitrator so selected shall arbitrate said dispute. The arbitration shall
be governed by the rules of the American Arbitration Association then in force and
effect.
XXII. Entire Agreement . This Agreement shall constitute the entire agreement
between the parties and any prior understanding or representation of any kind
preceding the date of this Agreement shall not be binding upon either party except to
the extent incorporated in this Agreement.
XXIII. Modification of Agreement. Any modification of this Agreement or additional
obligation assumed by either party in connection with this Agreement shall be binding
only if placed in writing and signed by each party or an authorized representative of
each party.
XXIV. Assignment of Rights. The rights of each party under this Agreement are
personal to that party and may not be assigned or transferred to any other person, firm,
corporation, or other entity without the prior, express, and written consent of the other
party.
XXV. Counterparts. This Agreement may be executed in any number of counterparts,
each of which shall be deemed to be an original, but all of which together shall
constitute but one and the same instrument.
XXVI. Compliance with Laws. In performing under this Agreement, all applicable
governmental laws, regulations, orders, and other rules of duly-constituted authority will
be followed and complied with in all respects by both parties.
XXVII. Each party is acting as an independent contractor and not as an agent, partner,
or joint venturer with the other party for any purpose. Except as provided in the
Agreement, neither party shall have the right, power, or authority to act or to create any
obligation, express or implied, on behalf of the other.
XXVIII. The indemnification and confidentiality obligations set forth in the Agreement
and any other provision which by its sense and context is appropriate, shall survive the
termination of this Agreement by either party for any reason.
XXIX. All exhibits to this Agreement are incorporated herein by reference and made
part of this Agreement.
WITNESS our signatures as of the day and date first above stated.
________________________ ________________________
(Name of Vendor) (Name of Distributor)
By:________________________ By:_________________________
(Signature of Officer) (Signature of Officer)
________________________ ________________________
(P rinted Name & Office in Corporation) (P rinted Name & Office in Corporation)
