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 West Virginia when entering into an agreement with a retailer to sell its software.
Docstoc Legal Agreements 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 West Virginia when entering into an agreement with a retailer to sell its software. ® DISCLAIMERS: ALL INFORMATION AND FORMS ARE PROVIDED “AS IS” WITHOUT ANY WARRANTY OF ANY KIND, EXPRESS, IMPLIED, OR OTHERWISE, INCLUDING AS TO THEIR LEGAL EFFECT AND COMPLETENESS. They are for general guidance and should be modified by you o r 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. Use of this document and our service are deemed to be your acknowledgement and agreement to the following: The disclaimers and links on this page and the back page(s); our Terms of Service (http://www.docstoc.com/popterm.aspx?page_id=15), and read more here (http://www.docstoc.com/popterm.aspx?page_id=114) for additional disclaimers and more. You also agree that if you are not the person using the document and services that you will provide such person(s) who will be with these front and back disclaimer pages. This document is not approved, endorsed by, or affiliated with any State, or governmental or licensing entity. Entire document copyright © Docstoc®, Inc., 2010 - 2013. All Rights Reserved 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. © Copyright 2011 Docstoc Inc. registered document proprietary, copy not 2 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. © Copyright 2011 Docstoc Inc. registered document proprietary, copy not 3 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. © Copyright 2011 Docstoc Inc. registered document proprietary, copy not 4 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; © Copyright 2011 Docstoc Inc. registered document proprietary, copy not 5 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 West Virginia shall have exclusive jurisdiction over any matters not resolved by arbitration. The arbitration shall take place in West Virginia 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 West Virginia applicable to contracts executed and wholly performed within such © Copyright 2011 Docstoc Inc. registered document proprietary, copy not 6 jurisdiction. Any dispute arising hereunder shall be referred to and heard in only a court located in West Virginia. 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: © Copyright 2011 Docstoc Inc. registered document proprietary, copy not 7 Exhibit A PRODUCTS © Copyright 2011 Docstoc Inc. registered document proprietary, copy not 8
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