Software Retailer Agreement
This Software Retailer Agreement can be used by Company/Businesses that is a
wholesaler or manufacturer of software products and a Retailer who sell those directly to
ocstoc Legal Agreements
purchasers/consumers or end users. This document efficiently provides option on how the
Retailer shall use the Company’s Corporate Identifications, Trademarks and what kind of
restrictions are imposed; additionally, restrictive covenants of Non-Disclosure of
Confidential Information, Non-Competition and Non-Solicitation etc. are also important
provisions of such an Agreement.
ALL INFORMATION AND FORMS ARE PROVIDED “AS IS” WITHOUT ANY EXPRESS OR IMPLIED
WARRANTY, INCLUDING AS TO LEGAL EFFECT OR COMPLETENESS. They are for guidance and should be
modified by you or your attorney to meet your specific needs and the laws of your state. Use at your own
risk. Docstoc, its employees or contractors who wrote or modified any form, are NOT providing legal or any other
kind of advice and are not creating or entering into an Attorney-Client relationship. The information and forms
are not a substitute for the advice of your own attorney. Subject to our Terms of Service
®
(http://www.docstoc.com/popterm.aspx?page_id=15). See back cover page and read more here
(http://www.docstoc.com/popterm.aspx?page_id=114) for additional disclaimers and more. This document is
not approved, endorsed by, or affiliated with any State, or governmental or licensing entity.
Entire document © Docstoc, Inc., 2010, 2011
Attorney Drafted
© Copyright 2011 Docstoc Inc. registered document proprietary, copy not 1
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 "Company") and _____________________________ [Instruction: Insert the name
of retailer company] located at _____________________________________ [Instruction:
Insert the Address of company] (hereinafter "Retailer"). The Company and the Retailer may
individually be referred to as “Party”, or, collectively as “Parties”.
WHEREAS, Company is the owner of, and desirous to sell certain software(s) ("Products")
as set forth in Exhibit - A (which may be amended from time to time by Company) to the
Retailer; and
WHEREAS, 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
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
© Copyright 2011 Docstoc Inc. registered document proprietary, copy not 2
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, Products will be ordered by Retailer
and shipped or electronically transferred by 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 Company from time to time and in effect at the time Company accepts the
order. Company reserves the right to change prices upon reasonable notice to Retailer.
Company agrees to exercise commercially reasonable best efforts to supply most updated
version of the Products to Retailer in a timely fashion.
4. Taxes.
The Parties agree that payment of any taxes levied on Products (other than taxes based on
income) shall be the Retailer's responsibility (including, without limitation, federal, state,
local, use or similar taxes), and Retailer shall report and pay such taxes to the appropriate
taxing authority as required by law.
5. Payment.
Unless otherwise agreed in writing, Retailer shall pay for all 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 Product constitutes and contains valuable
proprietary products and trade secrets of the Company and/or its suppliers, embodying
substantial creative efforts and confidential information, ideas, and expressions. Accordingly,
Retailer agrees to treat (and take precautions to ensure that its employees treat) the Product as
confidential in accordance with the confidentiality requirements and conditions set forth
© Copyright 2011 Docstoc Inc. registered document proprietary, copy not 3
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.
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 Product or output generated by the Product, and to reproduce and include same on each
copy of the Product. Retailer agrees not to modify, reverse engineer, disassemble, or
decompile the Product, or any portion thereof. Retailer further shall secure and protect all
Products consistent with maintenance of Company’s proprietary rights therein.
8. Export Control and Regulations.
Product being 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, Retailer warrants that it will comply in all
respect with the export and re-export restrictions set forth in the export license for the
Product and all other applicable export regulations. Retailer agrees to indemnify and hold
Company harmless from any loss, damages, liability or expenses incurred by Company as a
result of Retailer's failure to comply with any export regulations or restrictions.
9. Shipping.
All Products shall be sent in accordance with Company's then current shipping policies,
including, without limitation, the use of cartons bearing external art work or labels as
designated by Company. Retailer agrees to pay for all shipping, handling, and insurance
costs. Risk of loss shall transfer from Company to Retailer either at the point where
Company delivers the goods to a common carrier of its choice or at Company's shipping
dock.
© Copyright 2011 Docstoc Inc. registered document proprietary, copy not 4
10. Return Policy. [Instruction & Comment: Optional Clause – Use this clause if company if
offering return policy for defective software]
All defective Products returned to Company will be replaced and shipped prepaid to Retailer
or replaced subject to the manufacturer's warranty. Any Products received by Retailer and
held more than ___________ (___) [◊ fourteen (14)] days are returnable at the sole
discretion of Company. Products which are not defective in the reasonable judgment of
Company. Retailer agrees to obtain a returned merchandise authorization number or to
follow similar policies of 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.
Retailer acknowledges that the manufacturer of 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
Company shall provide reasonable notice of such changes whenever possible, Retailer agrees
that any changes are outside of 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. 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
RETAILER OR ANYONE ELSE FOR SPECIAL, INDIRECT, CONSEQUENTIAL, OR
© Copyright 2011 Docstoc Inc. registered document proprietary, copy not 5
PUNITIVE DAMAGES, INCLUDING, WITHOUT LIMITATION, LOST PROFITS, USE,
OR GOODWILL ON A CONTRACT, TORT, OR OTHER LEGAL THEORY.
COMPANY'S LIABILITY SHALL BE LIMITED TO THE PURCHASE PRICE OF
PRODUCTS SOLD.
14. Intellectual Property..
Company will defend any suit or proceeding brought against purchaser based on a claim that
the design or construction of the Product(s) sold or licensed hereunder by Company infringe
any U.S. Patent, Copyright or Mask Work Registration, provided that purchaser promptly
notifies Company of any such claim and resulting suit or proceeding in writing and further
provided that, at Company’s expense:
a. purchaser gives Company the sole right to defend or control the defense of the suit or
proceeding, including settlement; and
b. purchaser provides all necessary information and assistance for that defense. Except for
any consequential damages, Company will pay all costs and damages finally awarded or
agreed upon by Company that are directly related to any such claim. In the event of a
charge of infringement Company’s obligation under the Agreement will be fulfilled if
Company, at its option and expense, either:
i. procures for purchaser 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, 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 Purchaser, on any process application into which the products are
integrated by Purchaser, or on use of the products in combination with other equipment or
products not supplied by 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,
© Copyright 2011 Docstoc Inc. registered document proprietary, copy not 6
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 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 Company, upon ___________ (___) [◊ thirty (30)] days written notice;
b. By Company immediately upon notice if Retailer breaches any provision of this
Agreement;
c. Reseller institutes a voluntary bankruptcy or insolvency proceeding, or otherwise
becomes insolvent ;
16. Miscellaneous.
This Agreement, including attachments, constitutes the entire Agreement Between Retailer
and 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 the ________________________
[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.
© Copyright 2011 Docstoc Inc. registered document proprietary, copy not 7
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 the Iowa shall have exclusive jurisdiction over
any matters not resolved by arbitration. The arbitration shall take place in Iowa 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 Iowa applicable to contracts executed and wholly performed within such jurisdiction.
Any dispute arising hereunder shall be referred to and heard in only a court located in Iowa.
© Copyright 2011 Docstoc Inc. registered document proprietary, copy not 8
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:
Exhibit A
© Copyright 2011 Docstoc Inc. registered document proprietary, copy not 9
PRODUCTS
Note: Carefully read and follow the Instructions and Comments contained in this document for
your customization to suit your specific circumstances and requirements. You will want to
© Copyright 2011 Docstoc Inc. registered document proprietary, copy not 10
delete the Instructions and Comments from open bracket (“[“) to close bracket (“]”) after
reading and following them. You (or your attorney) may want to make additional modifications
to meet your specific needs and the laws of your state
◊Where within this document you see this symbol: ◊ or an instruction states “Insert any number you choose◊,”
or something similar, or there is a blank for the user to complete, please note that although Docstoc believes the
information or number may be any that the user chooses, and that there is no law governing what the
information or number should be, you might want to verify this, including by consulting with your own attorney
practicing in your state, and be reasonable.
INFORMATION AND FORMS ARE PROVIDED "AS IS" WITHOUT ANY EXPRESS OR IMPLIED WARRANTY
OF ANY KIND INCLUDING WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT OF
INTELLECTUAL PROPERTY, OR FITNESS FOR ANY PARTICULAR PURPOSE. IN NO EVENT SHALL
DOCSTOC, INC., OR ITS AGENTS, OFFICERS, ATTORNEYS, ETC., BE LIABLE FOR ANY DAMAGES
WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, BUSINESS
INTERRUPTION, LOSS OF INFORMATION) ARISING OUT OF THE USE OF OR INABILITY TO USE THE
MATERIALS, EVEN IF DOCSTOC HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
Your use of this document is deemed to be your agreement to the foregoing, the disclaimers on the cover page,
and that you have read and agree to our Terms of Service
(http://www.docstoc.com/popterm.aspx?page_id=15), as well as our disclaimer that Legal information is not
legal advice, and the important content available here: Read More
(http://www.docstoc.com/popterm.aspx?page_id=114)
© Copyright 2011 Docstoc Inc. registered document proprietary, copy not 11