Marketing Representative Agreement for Software
This Marketing Representative Agreement, hereinafter called the Agreement, is
made on the (date), between (Name of Company), a corporation organized and existing
under the laws of the state of (name of state), with its principal office located at (street
address, city, state, zip code), referred to herein as Company, and (Name of
Representative), a corporation organized and existing under the laws of the state of
(name of state), with its principal office located at (street address, city, state, zip code),
referred to herein as Representative.
Whereas, Company and Representative desire to enter into a relationship
whereby Representative will act as a marketing representative of Company for the
Software, as such terms are defined below, on the terms and conditions hereinafter set
forth.
Now, therefore, for and in consideration of the mutual promises and covenants
set forth herein, Company and Representative hereby agree as follows:
I. Definitions. The following terms when used in this Agreement shall have the
following meanings:
A. Software shall mean the most current version of Company's computer
software programs otherwise known as (name of programs) in machine readable
object code form as listed in Exhibit A hereto and Company’s most current
proprietary, copyrighted user manuals and documentation associated therewith,
and shall also include all modifications and enhancements to such computer
programs and documentation as provided by Company, and all authorized back-
up or archival copies.
B. Marketing Representative shall mean a (give brief description of what
this designation means).
C. License Agreement shall mean Company's standard customer end user
License Agreement attached hereto as Exhibit B, which Agreement must be
entered into by each Customer as a precondition to use of Software. This
License may also appear in the form of a click-on license via an electronic
communications over the Internet.
D. Customer shall mean a end-user person or entity brought to Company's
attention for the first time by Representative who has not previously been
contacted by Company and who as a result of the actions of Representative
enters into a License Agreement with Company for the purchase and use of the
Software.
II. Appointment of Representative.
A. Except as set forth herein, during the term hereof, Company hereby
appoints Representative as Company's nonexclusive Representative for
marketing of Software. Representative agrees that the marketing rights granted
hereby are non-transferable and non-assignable. Representative shall not by
virtue of this appointment be deemed to be granted any authority to market
Software to anyone who intends to further market the Software either as
independent products or as an original equipment manufacturer (OEM) or a
value added dealer or reseller (VAD or VAR). Representative shall have the right
to solicit orders for Software from any potential customer, except those potential
customers or classes of customers if any, described on Exhibit C attached
hereto.
B. Noncompetition
During the term of this Agreement, Representative shall not engage in the
development, distribution, or representation, directly or indirectly, of any
computer program similar to, or competitive with, Software.
III. Pricing and Terms of Use for Software
Company shall have the absolute right to establish the prices, charges and terms
governing the licensing of Software (collectively the License Policies) to any Customer.
The License Policies in effect from the date of this Agreement until further notice are set
forth on Exhibit D attached hereto. At least fifteen (15) days prior to a change in the
License Policies of Company, Company shall give written notice to Representative of
such proposed change and shall specify therein the effective date of such change.
IV. Referral Fee
A. On each order (represented by a License Agreement executed by a
Customer) for Software (Order). Company shall pay to Representative a
Referral Fee determined in accordance with Section IV-B and Exhibit E
attached hereto.
B. Earned Referral Fee. A Referral Fee shall be deemed earned by
Representative upon receipt of payment by Company of a license fee for an
Order after six (6) months of continuous use by Customer. All commissions
earned by Representative hereunder shall be due on or before the thirtieth (30th)
day after the license fee for the previous six (6) months is received by Company
from the end-user Customer.
C. Commissions after Termination. If this Agreement shall terminate for
any reason whatsoever prior to the end of the Customer's six (6)-month
continuous subscription, Representative shall not be entitled to receive its full
commissions.
D. Taxes. All taxes, duties, fees and other governmental charges of any kind
including withholding taxes (except United States taxes based on the gross
revenues or net income of Company) which are levied, assessed or otherwise
imposed by or under the authority of any government or any political subdivision
thereof on licenses of Software by Company shall be borne by Customer and
shall not be considered a part of, deducted from, or offset against any
commission payable to Representative.
E. Ancillary Services. Representative may provide additional services to the
end-user Customers for assistance in deploying Software. Representative shall
be entitled to retain any and all fees generated by Representative in the
performance of such related services provided such services have been
approved or authorized by Company, and such approval shall not to be
unreasonably withheld. By way of example and not limitation such services may
include billing services, computer system and network support and best practices
for the end-user Customer. Representative will provide all such services at it's
own risk and liability and will defend, indemnify and hold harmless Company from
any damages or liability that might result from the delivery of such services by
Representative.
V. Obligations of Company.
A. Support. Company shall provide such support to Representative as
Company deems to be reasonably necessary to enable Representative to
perform its obligations under this Agreement.
B. Technical Support. Company or its designee shall provide technical and
maintenance support for Software to Customers, pursuant to the License
Agreement.
C. Warranty. The Software under this Agreement is warranted by Company
only in accordance with the warranties expressly set forth in the License
Agreement. Such warranties may be modified by Company from time to time.
D. Limitation of Remedies. Company shall not be liable for any loss or
damage caused by delay in furnishing software services or any other
performance under or pursuant to this Agreement. In no event shall Company's
liability of any kind include any special, incidental or consequential losses or
damages, even if Company shall have been advised of the possibility of such
potential loss or damage.
VI. Obligations of Representative.
A. Marketing. Representative shall use its best efforts to market the
Software. Representative shall be solely responsible for paying all costs of
advertising and promotion of Software. Representative shall provide Company
with copies of all such proposed advertising or promotion thirty (30) days in
advance of use by Representative. Representative shall maintain a sufficient
sales organization to effectively market the Software in the Territory.
B. Authorized Statements. Representative is authorized to represent to its
customers only such facts about Software as Company itself states in its product
descriptions, advertising, and promotional materials or as may be stated in other
nonconfidential, written material furnished by Company. Representative
Representative agrees to defend, indemnify and hold Company harmless from
any liability arising in connection with any unauthorized statement or
misrepresentation of fact made by Representative or its agents to any party with
respect to Software.
C. License Agreements. Under no circumstances shall Representative
release the Software to a Customer prior to execution by the Customer of the
License Agreement set forth in Exhibit B, nor prior to approval of the signed
License Agreement by Company through Company's execution of the License
Agreement. Representative shall cause to be delivered to each prospective
licensee of the Software a License Agreement and shall use its reasonable best
efforts to ensure that such prospective licensee sign and abide by the terms of
the License Agreement. Representative shall not alter, amend, enlarge or limit
any term, condition or provision in the License Agreement without the express
prior written consent of Company. Representative shall forward to Company the
original copy of the Customer-executed License Agreement no later than ten (10)
days immediately following receipt by Representative of the License Agreement
signed by the prospective licensee. All such License Agreements signed by
prospective licensees shall be subject to final acceptance or rejection by
Company. In all cases, rejections by Company shall be given by written notice to
the prospective licensee with a copy thereof to Representative. Acceptance of a
License Agreement by Company shall be deemed to have occurred only upon
Company's execution of the License Agreement. Company reserves the right to
reject any License Agreement solicited or submitted by Representative. All
Customers that are referred to Company by Representative shall be required by
Company to acknowledge acceptance of the terms of use of Software through a
click-on or similar license agreement made available to Customer via the
Internet.
D. Confidentiality. Representative understands and agrees that, in
Company's performance of its duties hereunder, Company will communicate to
Representative certain confidential and proprietary information concerning the
Software and know-how, technology, techniques or marketing plans relating
thereto (collectively the Know-How), all of which are confidential, proprietary to
and trade secrets of Company. All such disclosures shall be made by Company
to Representative in utmost confidence. Representative agrees to hold all of such
Know-How within its own organization and shall not, without specific prior written
consent of an authorized officer of Company, utilize in any manner, communicate
or disclose any part thereof to any third party. Representative shall return all
written copies of Know-How to Company upon any termination of this
Agreement, or upon written request by Company at any time. Representative
shall make no attempts to reverse compile, disassemble, or otherwise reverse
engineer the Software or any portion thereof, nor shall Representative permit
others to do so. Representative shall require all of its customers, agents and
employees to sign a confidentiality agreement which requires compliance by
such personnel of the provisions of this Agreement and which is satisfactory to
Company, shall vigorously enforce such agreement, and shall take all steps
which Representative takes to protect its most valuable trade secrets, and by no
event less than reasonable steps. Representative acknowledges that:
1. The restrictions contained in this Agreement are reasonable and
necessary to protect Company's legitimate int