Fill and Sign the Glyphs Fonts Free Download Onlinewebfontscom Form

1 4.07 Form: Reseller Distribution Agreement This Agreement made by and between Producer, Inc., a New York corporation, having an office at Eighth Avenue, New York, New York ("Producer") and Universal Distribution, Inc., a California corporation, with a place of business at California Street, San Francisco, CA ("Distributor"). WHEREAS, Producer produces Compact Disc-Read Only Memory ("CD-ROM") multimedia titles; WHEREAS, Distributor promotes, markets and distributes CD-ROM multimedia titles for use with optical disc readers; and WHEREAS, Distributor desires to purchase certain CD-ROM titles from Producer for distribution through Distributor's Dealers and Affiliates (as hereinafter defined). NOW, THEREFORE, in consideration of the mutual covenants contained herein, the parties agree as follows: 1. Definitions As used in this Agreement, the following terms shall have the following meanings: 1.1. Affiliate "Affiliate" shall mean a parent or subsidiary of Distributor, or any affiliated companies in which Distributor owns fifty percent (50%) or more of the stock or otherwise has a controlling interest therein. 1.2. Data Discs "Data Discs" shall mean compact disc-read only memories or other optical media, whether now existing or hereinafter devised, containing data that can be read, accessed or manipulated by optical or laser technologies. 2 1.3. Dealer "Dealer" shall mean any dealer authorized by the Distributor to distribute merchandise on the Distributor's behalf. 1.4. Optical Disc Reader "Optical Disc Reader" shall mean optical disc reader capable of reading information from Data Discs or other similar optical media. 1.5. Products "Products" shall mean Data Disc products of 8 centimeter diameter, or any other format now or hereafter compatible with Optical Disc Readers, as defined herein, bearing the titles identified in Schedule A. 2. Appointment and Territory 2.1. Appointment Subject to the terms and conditions of this Agreement, Producer grants to Distributor the non-exclusive, worldwide right, except as set forth in Section 2.3 herein, to purchase from Producer prepackaged Data Discs comprising the Products set forth in Schedule A annexed hereto. Distributor shall have the right to advertise, market, distribute and sell the prepackaged Products only to its Dealers and Affiliates for sale to consumer end users ("End-Users"). Distributor may not copy or modify the Product, nor may Distributor remove any original contents of a Product package nor repackage the Product without the prior written consent of Producer. Distributor agrees to use reasonable efforts to advertise and aggressively promote the sale and distribution of the Products, at no cost to Producer. 2.2. Territory Distributor may only market and sell the Products within the territory specified in Schedule B (the "Territory"). 3 2.3. Limited Distributor Exclusive Producer hereby grants to Distributor a one (1) year exclusive period, commencing on the date hereof, to purchase and distribute the Products. The exclusive period shall be extended for one additional one (1) year period provided that Distributor orders and pays for a minimum of ten thousand (10,000) copies of each of the Products during the first year of this Agreement. 3. Price, Quantity, Payment and Shipment 3.1. Price For each Product shipped to Distributor, Distributor shall pay to Producer the Distributor Prices as set forth in Schedule C. Producer retains the right to adjust the suggested retail price of the Products set forth in Schedule A (the "Suggested Retail Price") upon thirty (30) days prior written notice to Distributor. 3.2. Quantity Distributor hereby orders a minimum initial quantity of two thousand five hundred (2,500) copies of each Product (the "Initial Order"). In addition, Distributor must order a minimum of one thousand (1,000) copies of each Product for subsequent re-orders. Distributor may order up to three hundred (300) copies of each of the Products to be used as promotional copies, not for resale to End Users. The price for the promotional copies is set forth in Schedule C. 3.3. Shipment Packages containing the Product(s) and any applicable Producer literature or documentation ("Documentation") shall be shipped by Producer to Distributor, F.O.B. delivery of the Products to a common carrier at the point of manufacture. Distributor shall reimburse Producer for any and all shipping charges. Producer shall not insert any special or extraordinary material, including but not limited to, mail order or other promotional material, in, or affix any special or extraordinary stickers or other items on, any Product that it delivers to Distributor pursuant to this Agreement, without obtaining Distributor's 4 prior written consent. As used in this paragraph "special or extraordinary" shall mean printed material, inserts, stickers or other promotional material (i)\x11not used by Producer in or on its general release of the Products, (ii)\x11that quotes a suggested wholesale, retail or special price for any of the Products, or (iii)\x11that advertises or promotes other Producer products. 3.4. Terms of Payment Other than the advanced payment or any special payment terms set forth in Schedule C, payment for Products and any other charges under this Agreement is due thirty (30) days from the date of Producer's invoice. A late payment charge of two percent (2%) per month, or the highest interest rate allowed by applicable law, shall be charged upon unpaid balances due for more than thirty (30) days. The Producer reserves the right to request advance payment of orders and/or to withhold production and shipment of subsequent orders until all previous orders and related charges have been paid for in full. 3.5. Taxes All pricing and fees under this Agreement are exclusive of taxes. Except for taxes based on Producer's net income and payments required to be made by Producer in accordance with Section 4.2 herein, Distributor shall pay any federal, state, county, local or other governmental taxes, fees or duties now or hereinafter imposed on the sale, export, use or possession of the Products purchased by Distributor hereunder, or any other transaction contemplated by this Agreement, as well as any penalties or interest thereon. Without limiting the foregoing, Distributor shall promptly pay to Producer an amount equal to any such items actually paid, or required to be collected or paid by Producer. 3.6. Orders Distributor's orders for the Products must be in writing and for the minimum number of copies of the Products per order set forth in Section 3.2. Orders must be placed at least thirty (30) days prior to the requested shipment date. Producer shall make every reasonable effort 5 to insure shipment of the Products on or before Distributor's requested shipment date. The terms and conditions of this Agreement shall apply to all orders submitted to Producer and supersede any different or additional terms on any Distributor purchase orders. Orders issued by Distributor to Producer are solely for the purpose of requesting shipment dates and quantities. All orders are subject to acceptance by Producer. Producer shall use reasonable efforts to ship accepted orders but shall not be liable to Distributor or any third party for any delay, error or failure in filling any orders. 3.7. Acceptance All orders shall be considered complete and accepted, with no right of revocation, as of ten (10) days after delivery to Distributor, unless Distributor gives written notice to Producer within such ten (10) day period of all items not delivered. Upon Distributor's receipt of all items not originally delivered, the order shall be considered accepted and complete, with no right of revocation. 3.8. Advertising Distributor may use the trade names, trademarks, images, likenesses or other information specified by Producer in writing ("Approved Materials") for normal advertising and promotion of the Products, subject to written direction by Producer. Upon reasonable notice, Producer may withdraw or modify such authorization. All use of any Approved Materials in any marketing and promotion, including but not limited to advertisements and packaging, shall contain such trademark or other notice of attribution as may be specified by Producer from time to time. Distributor shall submit to Producer for approval, prior to use, distribution or disclosure, any advertising, promotion or publicity in which the Approved Materials are used. 3.9. Packaging Producer agrees to package the Products ordered by Distributor in accordance with Distributor's reasonable instructions and specifications, annexed hereto as Schedule D. 6 4. Ownership and Proprietary Rights 4.1. Ownership and Rights Producer represents (i)\x11that it has all rights in and to copyrights, trade secrets and trademarks associated with the Products, or otherwise has the rights that are necessary to grant Distributor the right to advertise, market, distribute and sell the Products under this Agreement; (ii)\x11the literary and artistic materials and ideas, contained or embodied on the Products, containers and advertising materials, if any, furnished to Distributor by Producer, and the use thereof in accordance with the terms of this Agreement, will not violate any law, or infringe upon, or violate any rights of any person, firm or corporation; and (iii)\x11Producer has no knowledge of any litigation, proceeding or claim pending or threatened against Producer which may materially affect Producer's rights in and to the Products, or the works and performances embodied thereon, the copyrights pertaining thereto, or the rights, licenses and privileges granted to Distributor hereunder. 4.2. Royalties and Other Payments Producer shall be solely responsible for and shall make any payments required to be made to any individual, entity or group representing authors, participants in the production of the works or performances embodied on the Products, publishers or other persons having legal or contractual rights of any kind to participate in the receipts of such works or performances as a result of the transaction contemplated by this Agreement. 4.3. Proprietary Rights Ownership of all applicable copyrights, trade secrets, patents and other intellectual property rights in the Products and Documentation shall remain vested in Producer, or in Producer's licensor. Distributor shall not remove Producer's copyright notices, restricted rights legends or any other notices from the Products and Documentation. 7 5. Covenants of Distributor 5.1. Covenants Distributor covenants and represents that (i) Distributor shall make no representations or warranties on behalf of Producer; (ii) Distributor shall not sell, transfer, publish, disclose, display or otherwise make available the Products, to others except as expressly permitted herein; (iii) Distributor will comply with all credit and copyright obligations contractually required of Producer by third parties of which Producer notifies Distributor of in writing; and (iv) Distributor will maintain accurate books of accounts in connection with any sales made by Distributor pursuant to this Agreement. 5.2. Indemnification Distributor agrees to indemnify and hold harmless Producer from and against any claim, injury, loss or expense, including attorneys' fees, arising out of (i)\x11the failure of Distributor to comply with the provisions of Sections 5.1; (ii)\x11any misrepresentations of Distributor in connection with Producer or the Products; or (iii)\x11any other wrongful conduct of Distributor, its employees, representatives, agents or dealers. 6. Warranty 6.1. Limited Warranty For thirty (30) days after delivery of a Product to Distributor, Producer warrants that the media upon which the Product is delivered by Producer shall be of good quality and workmanship. Upon written notice from Distributor of defective media for a Data Disc, Producer shall use reasonable efforts to promptly provide replacement media. 6.2. Disclaimer of Warranties EXCEPT FOR THE LIMITED WARRANTY PROVIDED ABOVE IN SECTION 6.1, THE PRODUCTS AND DOCUMENTATION ARE PROVIDED "AS IS." PRODUCER SPECIFICALLY 8 DISCLAIMS ALL OTHER WARRANTIES EXPRESSED OR IMPLIED, INCLUDING BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AS TO ANY PRODUCTS OR SERVICES PROVIDED UNDER THIS AGREEMENT. 7. Limitation of Liability 7.1. Limitation IN NO EVENT SHALL PRODUCER BE LIABLE FOR ANY LOSS OF PROFIT OR ANY OTHER COMMERCIAL DAMAGE, INCLUDING BUT NOT LIMITED TO SPECIAL, INCIDENTAL, CONSEQUENTIAL OR OTHER INDIRECT DAMAGES UNDER ANY CAUSE OF ACTION ARISING OUT OF OR RELATING TO THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, CLAIMS ARISING FROM MALFUNCTION OR DEFECTS IN THE PRODUCTS OR NON-DELIVERY OF THE PRODUCTS, EVEN IF PRODUCER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. 7.2. Amounts Paid IN NO EVENT SHALL PRODUCER'S LIABILITY FOR ANY CLAIM ARISING OUT OF THIS AGREEMENT EXCEED THE AMOUNT PAID TO PRODUCER BY DISTRIBUTOR UNDER THIS AGREEMENT WITHIN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE ACCRUAL OF SUCH CLAIM. 8. Term and Termination 8.1. Expiration This Agreement shall commence on the date hereof and shall continue for an initial term of one (1) year. Thereafter, this Agreement may be renewed for an additional one (1) year term upon the written approval of both parties. 9 8.2. Termination This Agreement may be terminated by either party 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 and not dismissed in ninety (90) days to declare one of the parties bankrupt or for a reorganization under the Bankruptcy Law or any similar statute; (c) if a trustee in Bankruptcy or a receiver or similar entity is appointed for one of the parties; or (d) if the other party otherwise materially breaches the term of this Agreement, and such breach is not cured within thirty (30) days after written notice of such breach is given by the other party. 8.3. Duties Upon Termination The following Sections of this Agreement shall survive its termination: 4.3, 5, 6.2, 7, 10, 11 and 12.3. In the event that Distributor has any paid-up inventory of the Products as of the date of termination under Section 8.2, and provided termination is not a result of a material breach of Sections 4.3 or 10 or pursuant to Section 8.2(d), termination of this Agreement shall be adjourned for a period not to exceed six (6) months, during which period Distributor may continue to market and sell its inventories of the Products. During such six (6) month period, Distributor shall have no right to order or receive any additional copies of the Products. Upon termination of this Agreement, or at the expiration of the six (6) month continuation period, if applicable, Distributor shall return all Products and Documentation, as well as all copies of promotional materials, marketing literature, written information and reports pertaining to the Products that have been supplied by Producer. 9. Indemnification 9.1. Intellectual Property Producer shall, at its expense, defend any claim against Distributor that use of the Products, as delivered to Distributor under this Agreement, 10 infringes a United States copyright, trade secret or other intellectual property right of any third party. Producer shall pay any direct costs and damages attributable to such claim finally awarded by a court against Distributor on such claim. Producer shall have no liability for any such claim if Distributor is in material breach of this Agreement, or if the claim is based on use of or anything other than an unaltered Product as delivered by Producer, alone and not in combination with any other software, data or hardware, if such infringement would have been avoided by the use of the unaltered Product as delivered by Producer. 9.2. Cooperation by Distributor Producer shall have no obligations under Section 9.1 of this Agreement unless: (a) Producer 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) Producer shall have the right to assume sole authority to conduct the trial or settlement of such claim or any negotiations related thereto at Producer's expense; and (c) Distributor shall provide reasonable information and assistance requested by Producer in connection with such claim or suit. 10. Confidentiality Any specifications, samples, computer programs, technical information, lists of customers or potential customers or other proprietary business information or data, written, oral or otherwise, disclosed by one party to the other ("Confidential Information") shall remain the property of the disclosing party. The parties agree to hold all such Confidential Information in strict confidence and not to disclose same to any third party without the disclosing party's prior written consent. Upon expiration or termination of this Agreement, each party shall return to the other all such Confidential Information in its possession. 11 11. General 11.1. Force Majeure Producer shall not be liable for any delay or failure in performance under this Agreement, resulting directly or indirectly from acts of God, or any causes beyond the reasonable control of Producer. 11.2. Comparable Terms With respect to the purchase, manufacture and delivery of any Products ordered by Distributor pursuant to this Agreement, Distributor shall receive terms comparable to those that Producer offers to any other distributor of the Products. 11.3. Jurisdiction and Venue This Agreement shall be governed by and construed in accordance with the laws of the State of New York, without reference to its conflicts of laws provisions. Jurisdiction for litigation of any dispute, controversy or claim arising out of or in connection with this Agreement, shall be only in a Federal or the State Court having subject matter jurisdiction located in New York County, New York. 11.4. Entire Agreement This Agreement, including the Schedules attached hereto, constitutes the entire agreement between the parties with respect to this subject matter 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 released, discharged or modified except by an instrument in writing signed by the parties. 11.5. Independent Contractors It is expressly agreed that Producer and Distributor are acting hereunder as independent contractors. Under no circumstances shall any of the employees of one party be deemed the employees of the other for any purpose. 12 11.6. 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 reasonable expenses, including reasonable attorneys' fees. 11.7. Notice Any notice required to be given by either party to the other shall be deemed given if in writing and sent by confirmed facsimile transmission actually delivered, or deposited in the United States mail in registered or certified form with return receipt requested, postage paid, addressed to the notified party at the address set forth above. 11.8. Assignment Neither party may assign its rights under this Agreement without the prior written consent of the other party, except for an assignment by Distributor to an Affiliate, or an assignment by Producer to a parent, subsidiary or affiliate of Producer, or pursuant to a consolidation, merger or other reorganization. Unless otherwise expressly agreed, no such assignment shall relieve such assigning party of any of its obligations hereunder. 11.9. Severability 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. 11.10. Waiver A waiver by either party of any term or condition of this Agreement in any instance shall not be deemed or construed as a waiver of such term or condition for the future, or of any subsequent breach thereof. All remedies, rights, undertakings, obligations and agreements contained in this Agreement shall be cumulative, and none of them shall be in 13 limitation of any other remedy, right, undertaking, obligation or agreement of either party set forth herein. 11.1. Other Distribution Except for exclusivity provision set forth in Section 2.3 herein, nothing in this Agreement shall be deemed to in any way preclude Producer from distributing the Products or other products, as it deems appropriate, or from appointing others to do so, in or outside of the Territory. 11.2. Authorized Officer This agreement shall not be effective until signed by an authorized officer of Producer and Distributor. 12. International 12.1. Export License Distributor shall be exclusively responsible for the procurement and renewing of all export or import licenses required under United States or any foreign law for the export or import of the Products and shall pay all costs and other expenses in connection with such procurement and renewal. In addition, Distributor agrees to comply with any applicable export or import laws of the United States or any foreign country with respect to its export of the Products from the United States. 12.2. Compliance with Local Laws Distributor shall be exclusively responsible at its own expense for compliance with all local laws relating to the Products in the countries in which Distributor markets the Products. 14 12.3. Indemnification Distributor shall indemnify and hold Producer harmless from any claim, loss, cost, fine or expense, including reasonable attorneys fees, arising out of Distributor's breach of any provision in this Section 12. IN WITNESS WHEREOF, each party hereto has executed this Agreement by a duly authorized representative as of the date hereof. PRODUCER, INC. UNIVERSAL DISTRIBUTION, INC. By:________________________ By: ________________________ Title:______________________ Title: