Alaska Software Retailer Agreement

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                             This Software Retailer Agreement is used by a wholesaler or manufacturer of software
                             products and a retailer. This document sets forth the terms and conditions of the agreement
                             including the duration of the agreement, payment details, a confidentiality clause, shipping
                             terms and a disclaimer of warranties. It contains many of the standard clauses commonly
                             included in these types of agreements, and it may be customized to fit the specific needs of
                             the parties. This document should be used by a software owner located in Alaska when
                             entering into an agreement with a retailer to sell its software.
             ®




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                           SOFTWARE RETAILER AGREEMENT

THIS SOFTWARE RETAILER AGREEMENT (“Agreement”) is made and effective this
_____ [Month] _____ [Date], 20____, by and between ______________________
[Instruction: Insert the name of company owning the software] with headquarters located at
_______________________________________ [Instruction: Insert the address of company]
(hereinafter the “Company”) and _____________________________ [Instruction: Insert the
name of retailer company] located at _____________________________________
[Instruction: Insert the Address of company] (hereinafter the “Retailer”). The Company and
the Retailer may individually be referred to as the “Party”, or, collectively as the “Parties”.

WHEREAS, the Company is the owner of, and desirous to sell certain software(s) (the
“Products”) as set forth in Exhibit - A (which may be amended from time to time by the
Company) to the Retailer; and

WHEREAS, the Retailer is interested and desires to buy such Products under the terms of this
Agreement from the Company;

NOW, THEREFORE, in consideration of the mutual agreements and covenants herein
contained, the Parties hereto agree as follows:

1. Ownership.

   The original and any copies of the Products made by the Company, including translations,
   compilations, partial copies, modifications, and updates, shall be the sole property of the
   Company.

2. Term.

   This Agreement shall begin on date of execution and shall remain in full force and effect for
   ______ (___) [◊ five (5)] years. This Agreement may be renewed for a period that may not
   exceed ______ (___) [◊ three (3)] years. Renewals shall be conditional upon satisfactory
   performance evaluations by the Company. Any renewal or extension shall be in writing and
   executed by both Parties and shall be subject to the same terms and conditions set forth in
   this Agreement.

3. Price and Quantity.

   Subject to the terms and conditions of the Agreement, the Products will be ordered by the
   Retailer and shipped or electronically transferred by the Company at prices and distribution
   licenses as agreed to by the Parties and subject to the terms and conditions of sale and
   shipment established by the Company from time to time and in effect at the time the
   Company accepts the order. The Company reserves the right to change prices upon
   reasonable notice to the Retailer. The Company agrees to exercise commercially reasonable
   best efforts to supply most updated version of the Products to the Retailer in a timely fashion.




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4. Taxes.

   The Parties agree that payment of any taxes levied on the Products (other than taxes based on
   income) shall be the Retailer's responsibility (including, without limitation, federal, state,
   local, use, or similar taxes), and the Retailer shall report and pay such taxes to the appropriate
   taxing authority as required by law.

5. Payment.

   Unless otherwise agreed in writing, the Retailer shall pay for all the Products by a check or
   wire transfer or electronic bank draft net ___________ (___) [◊ fifteen (15)] days from the
   date of delivery. Subject to applicable law, late payments shall be subject to an additional fee
   of up to ______ (___ %) [Instruction: Insert the percentage to be paid for late payment,
   e.g., two percent (2%)] per month.

6. Confidentiality.

   Retailer hereby acknowledges and agrees that the Products constitute and contain valuable
   proprietary products and trade secrets of the Company and/or its suppliers, embodying
   substantial creative efforts and confidential information, ideas, and expressions. Accordingly,
   the Retailer agrees to treat (and take precautions to ensure that its employees treat) the
   Products as confidential in accordance with the confidentiality requirements and conditions
   set forth below. Each Party agrees to keep confidential all confidential information disclosed
   to it by the other Party in accordance herewith, and to protect the confidentiality thereof in
   the same manner it protects the confidentiality of similar information and data of its own (at
   all times exercising at least a reasonable degree of care in the protection of confidential
   information).

7. Protection of Software.

   The Retailer agrees to respect and not to remove, obliterate, or cancel from view any
   copyright, trademark, confidentiality, or other proprietary notice, mark, or legend appearing
   on any of the Products or output generated by the Products, and to reproduce and include
   same on each copy of the Products. The Retailer agrees not to modify, reverse engineer,
   disassemble, or decompile the Products, or any portion thereof. The Retailer further shall
   secure and protect all Products consistent with maintenance of the Company’s proprietary
   rights therein.

8. Export Control and Regulations.

   The Products are subject to the export control laws and regulations of the United States,
   including the U.S. Departments of Commerce and State, which prohibit export or diversion
   of certain technical products to certain countries, and the Retailer warrants that it will comply
   in all respect with the export and re-export restrictions set forth in the export license for the
   Products and all other applicable export regulations. The Retailer agrees to indemnify and
   hold the Company harmless from any loss, damages, liability or expenses incurred by the
   Company as a result of the Retailer's failure to comply with any export regulations or
   restrictions.


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9. Shipping.

   All the Products shall be sent in accordance with the Company's then current shipping
   policies, including, without limitation, the use of cartons bearing external art work or labels
   as designated by the Company. The Retailer agrees to pay for all shipping, handling, and
   insurance costs. Risk of loss shall transfer from the Company to the Retailer either at the
   point where the Company delivers the goods to a common carrier of its choice or at the
   Company's shipping dock.

10. Return Policy. [Instruction & Comment: Optional Clause – Use this clause if company if
    offering return policy for defective software]

   All defective Products returned to the Company will be replaced and shipped prepaid to the
   Retailer or replaced subject to the manufacturer's warranty. Any Products received by the
   Retailer and held more than ___________ (___) [◊ fourteen (14)] days are returnable at the
   sole discretion of the Company. Retailer agrees to obtain a returned merchandise
   authorization number or to follow similar policies of the Company prior to return.

11. Notices.

   Any notice given under this Agreement shall be in writing and sent via certified or registered
   mail or via facsimile to the address or number listed in the first paragraph of this Agreement.
   Notice shall be deemed sent upon receipt or ___________ (___) [◊ three (3)] days after
   mailing, whichever happens first.

12. Product Modification.

   The Retailer acknowledges that the manufacturer of the Products sold under this Agreement
   may change product specifications at any time for various reasons, such as to improve
   quality, comply with applicable law, or to adopt changes in materials or component sourcing.
   While the Company shall provide reasonable notice of such changes whenever possible, the
   Retailer agrees that any changes are outside of the Company's control and do not constitute a
   breach of this Agreement.

13. Warranty and Liability.

   ANY PRODUCTS SOLD BY COMPANY UNDER THIS AGREEMENT ARE
   PROVIDED WITH A MANUFACTURER'S WARRANTY. THE COMPANY MAKES NO
   OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT
   LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS
   FOR A PARTICULAR PURPOSE. IN NO EVENT SHALL COMPANY BE LIABLE TO
   THE RETAILER OR ANYONE ELSE FOR SPECIAL, INDIRECT, CONSEQUENTIAL,
   OR PUNITIVE DAMAGES, INCLUDING, WITHOUT LIMITATION, LOST PROFITS,
   USE, OR GOODWILL ON A CONTRACT, TORT, OR OTHER LEGAL THEORY. THE
   COMPANY'S LIABILITY SHALL BE LIMITED TO THE PURCHASE PRICE OF
   PRODUCTS SOLD.




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14. Intellectual Property.

Company will defend any suit or proceeding brought against the Retailer based on a claim that
the design or construction of the Products sold or licensed hereunder by the Company infringe
any U.S. Patent, Copyright, or Mask Work Registration, provided that the Retailer promptly
notifies the Company of any such claim and resulting suit or proceeding in writing and further
provided that, at the Company’s expense:

   a. The Retailer gives the Company the sole right to defend or control the defense of the suit
      or proceeding, including settlement; and

   b. The Retailer provides all necessary information and assistance for that defense. Except for
      any consequential damages, the Company will pay all costs and damages finally awarded
      or agreed upon by the Company that are directly related to any such claim. In the event of
      a charge of infringement the Company’s obligation under the Agreement will be fulfilled
      if the Company, at its option and expense, either:

      i. procures for the Retailer the right to continue using such products;

     ii. replaces the same with non-infringing products;

    iii. modifies the same so as to make them non-infringing; or

    iv. accepts the return of any infringing products and refunds their purchase price.

   Notwithstanding the foregoing, the Company will have no liability with respect to any claim
   of infringement to the extent based on a configuration or modification incorporated in the
   products at the request of the Retailer, on any process application into which the products are
   integrated by the Retailer, or on use of the products in combination with other equipment or
   products not supplied by the Company. THIS PARAGRAPH SETS FORTH COMPANY’S
   ENTIRE LIABILITY WITH RESPECT TO INTELLECTUAL PROPERTY AND
   INFRINGEMENT OF PATENTS BY ANY PRODUCTS (INCLUDING SOFTWARE
   PROGRAMS, EQUIPMENT OR PRODUCTS THEREOF) OR BY THEIR OPERATION,
   AND IS IN LIEU OF ALL WARRANTIES OR CONDITIONS RELATING TO
   INFRINGEMENT OR INTELLECTUAL PROPERTY, EITHER EXPRESS OR IMPLIED.

15. Term & Termination.

   This Agreement shall become effective on the date it is signed by the Company. Thereafter
   this Agreement shall continue until a Party shall give notice to the other Party of its desire to
   terminate this Agreement upon at least ___________ (___) [◊ thirty (30)] days prior written
   notice unless otherwise terminated as follows:

   a. By the Company, upon ___________ (___) [◊ thirty (30)] days written notice;

   b. By the Company immediately upon notice if the Retailer breaches any provision of this
      Agreement;



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    c. The Retailer institutes a voluntary bankruptcy or insolvency proceeding, or otherwise
       becomes insolvent;

16. Miscellaneous.

    This Agreement, including attachments, constitutes the entire Agreement between the
    Retailer and the Company with respect to the subject matter contemplated herein, and
    supersedes all representations, whether express, implied, oral or written. This Agreement
    shall be governed by and interpreted in accordance with the laws of
    ________________________ [Instruction: Insert the State where Company is
    incorporated]. Any waiver by either Party of any right or remedy hereunder shall be
    effective only if it is in writing and signed by an authorized representative. No delay or
    omission by a Party to exercise any right related to any breach or default of this Agreement
    will impair any such right or operate as a waiver.

17. Severability.

    This Agreement may be executed in any number of counterparts, each of which shall be
    deemed an original and all of which shall form one and the same instrument. If any provision
    of this Agreement is held by a court of competent jurisdiction to be illegal or unenforceable
    for any reason, such determination shall not affect the remainder of this Agreement, and such
    remainder shall remain in full force and effect.

18. Force Majeure.

    The Company will not be liable for loss, damage or delay caused by strikes or labor
    difficulties, lockouts, acts or omissions of any governmental authority, insurrection, riot, war
    or similar hostility, fires, floods, Acts of God, breakdown of essential machinery, accidents,
    cargo or material shortages, delays in transportation, inability to obtain labor, materials or
    parts from usual sources or otherwise due to causes beyond the Company's reasonable
    control. In the event of any such delay, performance will be postponed by such length of time
    as may be reasonably necessary under the circumstances.

19. Arbitration.

   The Parties agree to make a good faith effort to settle any disputes prior to submission of the
   matter to arbitration. Any dispute or claim arising out of or related to this Agreement, its
   interpretation, performance, breach or rescission shall be decided by final and binding
   arbitration according to the Commercial Arbitration Rules of the American Arbitration
   Association. The federal and state courts of Alaska shall have exclusive jurisdiction over any
   matters not resolved by arbitration. The arbitration shall take place in Alaska and be
   conducted by ___________ (___) [Instruction: Insert numbers of arbitrators, e.g., three
   (3)] arbitrators selected by the American Arbitration Association.

20. Governing Law.

    This Agreement shall be construed in accordance with and governed for all purposes by the
    laws of Alaska applicable to contracts executed and wholly performed within such


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   jurisdiction. Any dispute arising hereunder shall be referred to and heard in only a court
   located in Alaska.

   IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed as of the
   Effective Date.


                          For: COMPANY                                    For: RETAILER




          Signed:_________________________________ Signed:_______________________________

          Name:                                                Name:

          Title:                                               Title:

          Date:                                                Date:




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                                             Exhibit A

                                           PRODUCTS




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Description: This Software Retailer Agreement is used by a wholesaler or manufacturer of software products and a retailer. This document sets forth the terms and conditions of the agreement including the duration of the agreement, payment details, a confidentiality clause, shipping terms and a disclaimer of warranties. It contains many of the standard clauses commonly included in these types of agreements, and it may be customized to fit the specific needs of the parties. This document should be used by a software owner located in Alaska when entering into an agreement with a retailer to sell its software.
This document is also part of a package Essential Alaska Legal Documents 174 Documents Included