Minnesota 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 Minnesota 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 "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



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   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



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   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.




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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



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    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,



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   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.



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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 Minnesota shall have exclusive jurisdiction
   over any matters not resolved by arbitration. The arbitration shall take place in Minnesota
   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 Minnesota 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 Minnesota.




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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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