Fill and Sign the Software Distribution Agreement Secgov Form

-1- § 7.33 Form: Software Distribution and Maintenance Agreement This non-exclusive, limited territory agreement authorizes a distributor to market and distribute, either as a reseller or an OEM, specific versions of the software and related products, and to subcontract the distribution but not the marketing of the products. The developer provides maintenance, support, and training only for the distributor; the distributor provides installation, maintenance and support to the sub-distributors and end users. DISTRIBUTOR DISTRIBUTION AGREEMENT (the "Agreement ") made this day of __________, 199 _____ (the "Effective Date ") by and between Software Distribution, Inc., a Delaware corporation with its principal place of business at 100 Hudson Street, New York, New York 10012 ( "Distributor "), and Softworks Corp., a Delaware corporation with its principal offices at 2000 Glyndon Ave., Los Angeles, California 90291 ( "Softworks "). WHEREAS, Softworks has developed certain computer programs which it desires to license to Distributor for purposes of distribution and marketing; and WHEREAS, Distributor desires to market and distribute the computer programs developed by Softworks; NOW, THEREFORE, in consideration of the mutual promises contained herein, it is hereby agreed as follows: 1. License and Term 1.1 Distribution License Subject to the terms and conditions of this Agreement, Softworks grants to Distributor the nonexclusive right and license to market and distribute and to sublicense the distribution of, the software, products and related documentation : [provide details of the software, products and documentation] set forth in Schedule A annexed hereto (the "Products") to End Users and Sub-Distributors, both as defined hereinin Section 1.3 hereof, and to install such Products onto hardware to be distributed to such End-Users and Sub-Distributors . Unless otherwise specified, the software Products shall be in binary or object code form, and Distributor shall have no right to the source code of such Products. Distributor shall not in any way modify, adapt, translate, decompile, reverse engineer or otherwise 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 of any Product . Distributor may not, and may not permit Sub-Distributors or End Users to, use, -2- reproduce, sublicense, distribute or dispose of the Products, in whole or in part, except as expressly permitted under this Agreement.1.2 Territory Distributor may market and distribute the Products in ___[insert territory]____________________within the geographical limits set forth in Schedule B (the "Territory "). Nothing contained in this Agreement shall prohibit Softworks from licensing or distributing the Products or from appointing any third party(ies) to do so within the Territory or elsewhere. Softworks retains the right, in its sole discretion, to change the Territory assigned to Distributor upon __________ (_____) days prior written notice to Distributor. 1.3 End Users and Sub-Distributors As used herein, the term "End Users" shall refer to licensees of Products who entered into an End User License Agreement with Softworks pursuant to Section 1.6 hereof , and the term "Sub- Distributor" shall mean third parties whichwho , pursuant to a sub- distribution agreement entered into with Distributor ( "Sub- Distribution Agreement "), may purchase Products , whether or not installed on hardware, from Distributor for distribution solely to End Users. The Sub-Distribution Agreement(s) entered into by Distributor must have terms and conditions which are substantially similar to, and in no event less restrictive than, those set forth in this Agreement. Upon request of Softworks, Distributor shall provide Softworks with copies of all Sub-Distribution Agreements. 1.4 Product Modifications Softworks retains the right, in its sole discretion, to upgrade or modify the Products from time to time. In addition, upon __________ (_____) days prior written notice to Distributor, Softworks may add to or delete from the list of Products enumerated in Section 1.1 hereof.from Schedule A. Upon receipt of any such notice of of such upgrade s or modification s, or upon the expiration of the notice per period set forth above for additions to or deletions from the list of Products.to Schedule A, Distributor shall cease the marketing and distribution of earlier versions of the Products and/or Products deleted from Schedule A.Section 1.1. 1.5 Product Packaging Distributor agrees that all copies of the Products sold to Distributor hereunder will remain in their sealed packages, as provided by Softworks to Distributor, until sold, except for copies provided to -3- Distributor for the express purpose of demonstration or training, or which are loaded onto hardware by Distributor for shipment to a Sub- Distributor or End User in accordance with Section 1.1 herein.1.6 End User Licenses In connection with Distributor's and Sub-Distributors' license and distribution of the Products to End Users, Distributor will, and will require each of its Sub-Distributors to, have End Users execute an End User License Agreement in the form annexed hereto as Schedule C A (the "End User License Agreement "). Distributor and Sub-Distributors may not negotiate the terms of the End User License Agreement with any prospective End User, nor may they agree to any conflicting, different or additional terms from those set forth in End User License Agreement. Any such negotiations, if required, shall be conducted exclusively by Softworks, in Softworks' sole and absolute discretion. In no event shall Softworks be liable to Distributor or any Sub- Distributor for the failure of a prospective End User to enter into an End User License Agreement. 1.7 License to Use Trademark and Trade Name Any and all trademarks and trade names which Softworks uses in connection with the license granted hereunder, including but not limited to " SoftworksSOFTWORKS ," and " WorkwareWORKWARE " are and remain the exclusive property of Softworks. Nothing contained in this Agreement shall be deemed to give Distributor any right, title or interest in any trade name or trademark of Softworks relating to the Products. Subject to written modification or cancellation by Softworks of such notice from Softworks in writing which modifies or cancels such authorization, during the term of this Agreement, Distributor may during the term of this Agreement use the trade names and trademarks specified by Softworks in writing for normal advertising and promotion of Products. 1.8 Term This Agreement shall have an initial term of __________ (_____) year(s) from the Effective Date (the "Initial Term"), and shall thereafter automatically renew for successive __________ (_____) month 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 on the Initial Term , or any Renewal Term, by serving written notice of such termination on the other party at least __________ (_____) days prior to the effective date thereofof the termination . -4- 2. Price, Payment and Shipment2.1 Price Softworks shall, in its sole discretion, establish the prices payable by Distributor for the Products (the "Prices "). The current Prices are set forth in Schedule A.as follows: [insert pricing information] Softworks may increase or decrease the Prices upon __________ (_____) days ’ written notice to Distributor. 2.2 Orders, Payments and Shipment Upon Softworks' receipt of a written order from Distributor (each an "Order ") and payment in full of the Price and associated shipping costs for the Products ordered, Softworks will ship to Distributor the designated quantities of the Products. The Products shall be shipped by Softworks to Distributor F.O.B. origin, freight pre-paid, with risk of loss to pass to Distributor upon delivery of the products by Softworks to a common carrier. The terms and conditions of this Agreement shall apply to all Orders submitted to Softworks by Distributor and supersede any different or additional terms on any Distributor Order form. Orders issued by Distributor to Softworks are solely for the purpose of requesting delivery dates and quantities. All Orders shall be subject to acceptance by Softworks. Softworks 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 Softworks' delay or error in filling, or failure to fill, any Orders for any reason. If Softworks has received orders in excess of its inventory, Softworks shall allocate available inventory on whatever basis that Softworks, in its absolute discretion, deems equitable. Payment of the Price for the Products and associated shipping costs will be due simultaneously with the submission of an Order by Distributor. All other fees and expenses payable hereunder and for which Softworks issues an invoice to Distributor, shall be due and payable __________ (_____) days from the date of the invoice. A late payment charge of __________ percent (_____%) per month, or the highest interest rate allowed by applicable law, shall be charged upon all unpaid amounts due hereunder for more than __________ (_____) days. Softworks shall have no obligation to accept any Order or ship Products for which full payment has not been received. If any payment received exceeds the Price for the Products shipped, upon receipt of notice from Distributor, Softworks will either apply any -5- excess as a credit to Distributor's account or refund such excess to Distributor.2.3 Inspection and Acceptance Distributor shall inspect all Products immediately upon delivery and shall, within __________ (_____) calendar days, give written notice to the common carrier and Softworks of any claim for damages or shortages. Distributor shall give written notice to Distributor within __________ (_____) days of delivery 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. 2.4 Taxes In addition to the Price and other fees payable hereunder, Distributor shall pay any federal, state, county, local or other governmental taxes, duties and excise taxes, now or hereafter applied on the sale, transportation, import, export, licensing or use of the Products including sales tax, use tax, value added tax or similar tax. Any taxes imposed by federal, state or any municipal government or any amount in lieu thereof, including interest and penalties thereon, paid or payable at any time by Softworks in connection with Softworks' license to Distributor, exclusive of taxes based on Softworks' net income, shall be borne by Distributor. 3. Maintenance and Support3.1 Softworks Support For the maintenance and support fee set forth in Section 3.3, Softworks will provide Distributor with Software Support, as defined in Schedule D B ("Softworks Support "). Softworks reserves the right to designate any modified or updated versions of the Product as new Products, support for which is and not required to be provided under Softworks Support. 3.2 Distributor Support Distributor shall provide Sub-Distributors and End Users with Distributor Support as set forth in Schedule DB . Except for the explicit support obligations of Softworks to Distributor set forth in Section 3.1, Distributor shall remain solely responsible for all installation, maintenance and support services to the Sub-Distributors and End Users with regard to the Products. 3.3 Maintenance and Support Fee -6- For Softworks Support, Distributor shall pay to Softworks in monthly installments, in advance, a maintenance and support fee equal, on an annual basis, to __________ percent (_____%) of tDistributor’s he then - current End User license list price for the Products licensed by all current End Users (the "Softworks Support Fee"). With each monthly installment of the Softworks Support Fee, Distributor shall include a list of all current End Users and a report showing the additions and deletions of End Users from the previous list, and the date of such addition or deletion. 3.4 Training Softworks shall provide Distributor with the sales, marketing and product training set forth in Schedule EC . Any additional training requested by Distributor will be provided in accordance with Softworks' then - current standard terms and conditions and will be at Softworks' then - current rates, and subject to the availability of Softworks' personnel. Distributor shall be solely responsible for the training of SubDistributors and/or End Users. 3.5 Audit Rights Distributor shall maintain accurate books and records of all licenses granted for the Product, End Users receiving maintenance and the Softworks Support Fees payable. Upon reasonable notice to Distributor, and no more frequently than ____________ times per year, Distributor shall make such books and records available to Softworks, at Distributor's place of business during normal business hours, to audit the payments being made by Distributor hereunder. 4. Distributor Obligations 4.1 Marketing Efforts Distributor agrees to use its best efforts to promote the sale of the Products in the Territory, at its sole expense. In addition, Distributor agrees to: (a) provide Softworks with monthly sales forecasts simultaneously with the payment of the Softworks Support Fee, as required by Section 3.3, outlining the quantities of Products anticipated to be purchased and sold by Distributor during the next subsequent month; (b) keep Softworks informed of its price lists; (c) permit Softworks to review all of Distributor's promotion and advertising material for the Products prior to use; and -7- (d) inform Softworks immediately of any changes in Distributor's organization or method of doing business which might affect the performance of Distributor's duties hereunder. 4.2 Prohibited Practices Distributor may not make any contracts or commitments on behalf of Softworks nor make any warranties or other representations regarding the Products other than those authorized by Softworks in writing. Distributor shall indemnify and hold harmless Softworks from any claims, liabilities, expenses, and costs, including attorneys' fees, arising from (i) the breach of any of Distributors obligations in this section Section 4, or (ii) Distributor's failure to include in its Sub- Distribution Agreements terms and conditions at least as restrictive as those set forth in this Agreement with respect to Sub-Distributors' rights in the Products, the distribution thereof by Sub-Distributors and the obligations of Softworks, including, but not limited to, the limitation of warranties and liabilities. 4.3 Insurance Distributor represents that it maintains and will continue to maintain during the term of this Agreement Workers' Compensation insurance, comprehensive general liability insurance and property damage insurance, as required by law and in amounts reasonably sufficient to cover potential claims against Distributor. 5. Proprietary Rights and Confidentiality5.1 Proprietary Rights Distributor acknowledges and agrees, and shall require each Sub- Distributor to acknowledge and agree, that the Products, and all copies thereof, constitute valuable trade secrets of Softworks and/or proprietary and confidential information of Softworks and title thereto remains in Softworks. Ownership of all applicable copyrights, trade secrets, patents and other intellectual property rights in the Products are and shall remain vested in Softworks. All other aspects of the Products, including, without limitation, programs ,* methods of processing, design and structure of individual programs and their interaction and programming techniques employed therein shall remain the sole and exclusive property of Softworks and shall not be sold, revealed, disclosed or otherwise communicated, directly or indirectly, by Distributor or Sub-Distributor to any person, company or institution whatsoever other than as expressly set forth herein. The copyright notice and restricted rights legends set forth in Schedule F D shall appear on all tapes, diskettes , CD-ROMs, and other tangible -8- media distributed by Distributor. Distributor acknowledges and agrees , and shall require each Sub-Dist ributor to acknowledge and agree, that all persons who use the Products must be licensed by a Softworks End User License Agreement.5.2 Confidentiality Distributor acknowledges, and will require each Sub-Distributor to acknowledge, that in the course of dealings between the parties, Distributor and Sub-Distributors may acquire information about Softworks, its business activities and operations, its technical information and trade secrets, including but not limited to computer programs, all of which are highly confidential and proprietary to Softworks (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, and shall require each Sub- Distributor to , hold all such Confidential Information in strict confidence and shall not reveal the same except pursuant to a court order or upon request of Softworks. The Confidential Information shall be safeguarded with at least as great a degree of care as Distributor, or Sub-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. 5.3 Specific Remedies If Distributor , or any Sub-Distributor commits a breach of any of the provisions of Sections 5.1 or 5.2 above, Softworks 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 Softworks and that money damages will not provide an adequate remedy, and (b) the right to require Distributor to account for and pay to Softworks all compensation, profits, monies or other tangible benefits (collectively "Benefits") derived from or received as the result of any transactions constituting a breach of any of the provisions of this Section 5, and Distributor hereby agrees to account for and pay such benefits. 6. Limited Warranty 6.1 Limited Warranty For ____________ (______) days after delivery of a Product to Distributor, Softworks warrants that media upon which the Product is delivered shall be of good quality and workmanship. Upon written -9- notice from Distributor of defective media for a Product, Softworks shall use reasonable efforts to promptly provide replacement media.6.2 Disclaimer of Warranties EXCEPT FOR THE LIMITED WARRANTY SET FORTH IN SECTION 6.1, THE PRODUCTS ARE PROVIDED "AS IS." SOFTWORKS SPECIFICALLY DISCLAIMS ALL WARRANTIES EXPRESSED OR IMPLIED, INCLUDING BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE WITH RESPECT TO THE PRODUCTS OR DEFECTS IN THE TAPE, DISKETTE OR OTHER PHYSICAL MEDIA AND DOCUMENTATION, OPERATION OF THE PRODUCTS, AND ANY PARTICULAR APPLICATION OR USE OF THE PRODUCTS. 7. Limitation of Liability IN NO EVENT SHALL SOFTWORKS 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. SOFTWORKS' MAXIMUM LIABILITY HEREUNDER IS EXPRESSLY LIMITED TO ANY AMOUNTS PAID UNDER THIS AGREEMENT BY DISTRIBUTOR TO SOFTWORKS WITH THE ____________ (______) MONTH PERIOD IMMEDIATELY PRECEDING THE CAUSE GIVING RISE TO THE CLAIM. 8. Termination 8.1 Termination by Softworks This Agreement may be terminated by Softworks 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 ____________ (______) 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 -10- (d) if Distributor does not pay Softworks within ____________ (______) days from the date that any payments are due hereunder; or (e) if Distributor breaches the provisions of Section 4.1 of this Agreement; or (f) if Distributor otherwise materially breaches the terms of this Agreement, and such breach is not cured within ____________ (______) days after written notice of such breach is given by Softworks. 8.2 Distributor Termination This Agreement may be terminated by Distributor upon a material breach by Softworks which is not cured by Softworks within ____________ (______) days after written notice of such breach is given by Distributor. 8.3 Duties Upon Termination In the event that Distributor has any paid-up inventory of the Products as of the date of termination under Sections 8.1 or 8.2, and provided termination is not a result of a material breach of Section 4.1, the parties agree to continue their cooperation in order to effect an orderly termination of their relationship and termination of this Agreement shall be adjourned for a period not to exceed ____________ (______) months, during which time Distributor may continue to market and distribute its inventory of the Products. During such ____________ (______) month period, Distributor shall have no right to order or receive any additional copies of the Products. Within , ____________ (______) days of termination, Distributor shall return all copies of promotional materials, marketing literature, written information and reports pertaining to the Products that have been supplied by Softworks. The following Sections of this Agreement shall survive its termination: 4.2, 5.1, 5.2, 5.3, 6.2, 7, 9.2, and 10. Distributor expressly agrees that termination according to this Agreement shall not make Softworks responsible to reimburse or pay Distributor in any way for loss of profits, investments made or for like causes. 9. Indemnification 9.1 Copyright Indemnification Softworks 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 -11- 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, Softworks 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 noninfringing 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. 9.2 Distributor Indemnification Distributor shall indemnify, defend and hold Softworks harmless from any claims, demands, liabilities or expenses, including reasonable attorneys' fees, incurred by Softworks as a result of any claim or proceeding against Softworks 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 Softworks, if such infringement would have been avoided but for such combination, operation or use or (ii) the modification of the Products by Distributor to any Sub-Distributor. 9.3 Cooperation by Distributor Notwithstanding Section 9.1 of this Agreement, Softworks is under no obligation to indemnify and hold Distributor harmless unless: (a) Softworks 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) Softworks shall have the right to assume sole authority to conduct the trial or settlement of such claim or any negotiations related thereto at Softworks' expense; and (c) Distributor shall provide reasonable information and assistance requested by Softworks in connection with such claim or suit. 10. General 10.1 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. -12- 10.2 Jurisdiction and Venue This Agreement shall be governed by and construed in accordance with the laws of the State of New York. 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 New York City. 10.3 Entire Agreement This Agreement, including the Schedules 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. 10.4 Independent Contractors It is expressly agreed that Softworks 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. 10.5 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. 10.6 Notices Any notice required to be given by either party to the other shall be deemed given if in writing and 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 or as changed by notice given pursuant to this Section. 10.7 Assignment This Agreement is not assignable by either party hereto without the consent of the other, except that this Agreement shall be assignable by Softworks upon the sale of all rights to license and sublicense the -13- Products to the purchaser of said rights. This Agreement shall be binding upon and inure to the benefit of the parties and their respective successors.10.8 Severability If any provision of this Agreement is determined by a court of competent jurisdiction to be invalid or un enforceable, such determination shall not affect the validity or enforceability of any other part or provision of this Agreement. 10.9 No Waiver No waiver by any party of any breach of any provisions hereof shall be effective or enforceable unless made in writing signed by the party. IN WITNESS WHEREOF, the parties hereto have executed this Agreement by a duly authorized representative as of the date set forth above. SOFTWARE DISTRIBUTION, INC. SOFTWORKS CORP. By:________________________ By:_____________________ Name:______________________ Name:___________________ Title:_______________________ Title:____________________