Software Distribution Agreement by pellcity27


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									                            Software Distribution Agreement

        This Software Distribution Agreement (the Agreement) is made as of (date), (the
Effective Date) by and between Acme, Inc., a corporation organized and existing under
the laws of the state of ______________, with its principal office located at (street
address, city, state, zip code), referred to herein as Developer, and ABC, Inc., a
corporation organized and existing under the laws of the state of ______________, with
its principal office located at (street address, city, state, zip code), referred to herein as
whose address is Distributor.

     Whereas, Developer has created and prepared in the form of program packages
computer programs for use on microcomputers; and

       Whereas, Developer wishes to provide quantities of these program packages to
Distributor for marketing by Distributor to qualified dealers of such products, including
computer stores, software stores, bookstores, and other retail outlets, under the terms
and conditions of this Agreement; and

      Whereas, Distributor wishes to accept and pay for certain quantities of these
program packages under the terms and conditions of this Agreement;

       Now, therefore, for and in consideration of the mutual covenants contained in this
Agreement, and other good and valuable consideration, the receipt and sufficiency of
which is hereby acknowledged, the parties agree as follows:

1.     Definitions
       As used in this Agreement, the following words and phrases shall have the
following meanings:

       A.     Dealer. An operator of one or more retail outlets for microcomputers and
       related equipment and for computer software, at certain designated locations,
       which are or will be staffed with personnel competently trained in the operation
       and marketing of microcomputer software, including the Products, and which
       have agreed or will agree to comply with the returns policy of Section 11 of this

       B.     Distributor Support. Demonstration services to be provided to Dealers
       by Distributor with respect to the Products in accordance with Developer's
       Distributor Support Guidelines as described in Exhibit A attached to this

       C.     Direct End-User Support. Telephone hot-line consultation service and
       updates, both mandatory and discretionary, provided to End Users by Developer
       in accordance with the terms and conditions of the End-User License Agreement
       contained in each Product.
     D.     End Users. Customers of a Dealer who have acquired Products from
     Dealer for their own use and not for redistribution, remarketing, time sharing, or
     service bureau use, all in accordance with the terms of End-User License

     E.    Mandatory Updates. Corrections to the computer code or documentation
     comprising the Products as required to maintain marketable performance of the
     Products and, in connection therewith, conformity among the code,
     documentation, and marketing literature relating to a particular Product.

     F.    Products. Program packages, including: (1) machine-readable program
     code on diskettes; (2) instruction booklets and other information prepared for End
     Users regarding the use of the program; and (3) an End-User License
     Agreement, packaged for marketing by a retail outlet to End Users. Products that
     are subject to this Agreement are listed by title and functional description on the
     Product Price List attached to this Agreement as Exhibit B.

     G.     Sales Support and Materials. Reasonable quantities of sales literature,
     brochures, and demonstration materials, listed on the Schedule of Marketing
     Materials attached to this Agreement as Exhibit C and furnished by Developer at
     the prices listed in Exhibit C. In addition, training, telephone consultation service,
     and Mandatory Updates may be provided by Developer for certain programs as
     Sales Support, all as more fully described in Exhibit C.

2.   Marketing Appointment; Developer and Distributor Support
     A.      Developer grants Distributor the nonexclusive right to market the Products
     provided to Distributor under this Agreement, in unopened and unaltered form, to
     Dealers located in (description of territory). No right or license to use, copy, or
     alter the Products is granted by this Agreement, except that Distributor may use
     up to (number) copies of each product for purposes of: (1) testing of the Product
     for acceptability; and (2) demonstrating the Product to Dealers.

     B.    Developer shall provide Sales Support and Materials as it deems
     appropriate and necessary and, with respect to Mandatory Updates, in
     accordance with the terms of the End-User License Agreement included with
     each Product.

     C.     Distributor shall employ, and Developer shall initially train at mutually
     agreeable times within the initial (number) months of the Agreement, not less
     than (number) nor more than (number) persons in the operation and use of
     Products. After that, distributor shall provide Distributor Support to Dealers.

3.   Product Orders and Shipment
     A.      Distributor agrees to an initial product order of the quantities filled in and
     initiated by Distributor on Exhibit D, Initial Product Order. Distributor shall order
     subsequent shipments of the Products by written product order to Developer,
provided such written product orders shall call for at least the minimum order
quantities indicated in the column Minimum Order Quantity in Exhibit B.

B.     Within the first (number) days of each month, Distributor shall prepare
Distributor's tentative projections of the number and classification of Products
that Distributor reasonably expects to order and accept for distribution during
each of the following (number) months (those Products expected to be ordered by
Distributor approximately (number) days after that) to satisfy its continuing
requirements, and shall submit same to Developer.

C.      Distributor agrees to employ sufficient efforts to promote and market
Products to Dealers, such that Distributor shall acquire from Developer Products
for distribution in the minimum (quarterly or semiannual) amount of $_________.
Distributor acknowledges that failure to achieve such volumes shall be grounds
for termination of this Agreement by Developer upon written notice to Distributor
at the conclusion of each calendar (quarter or half year).

D.      Distributor shall from time to time prepare and submit to Developer product
orders stating the number and classification of Products that Distributor desires to
receive (with shipment by Developer expected approximately (number) days after
that). Distributor's product orders shall be in writing and shall constitute binding
commitments to accept the number and classification of Products stated in them,
in accordance with the terms and conditions of this Agreement. Distributor may
cancel a product order only with the prior written approval of an authorized
representative of Developer.

E.     Within (number) of days) days after receiving a product order from
Distributor submitted in accordance with the terms of this Agreement, Developer
shall accept such product order unless Developer determines that it cannot
reasonably ship the quantities called for in the product order. Acceptance by
Developer of each of Distributor's product orders shall be deemed to have
occurred if Developer fails to notify Distributor within (number) days after
receiving such product order. Developer's acceptance shall constitute a binding
commitment to ship to Distributor the number and classification of Products
stated in such product order, in accordance with the terms and conditions of this
Agreement. If Developer does not accept a product order, Developer shall provide
Distributor with written notice within (number) days of Developer's receipt of such
product order as to what portion of such product order Distributor will accept.
Distributor may in such an event order from Developer all or any portion of such
Products that are available.

F.     Developer shall use all reasonable efforts to ship quantities of Products
ordered within (number) days of receipt and acceptance of product orders.
Packaging and shipment of Products shall be in accordance with Developer's
customary procedures. Risk of loss with respect to Products shall pass to
Distributor at the time Products are delivered to the applicable common or private
     carrier. The carrier shall be selected by Developer unless Distributor designates
     a carrier preference. If shipment by Developer is not anticipated within (number)
     days from the date of receipt of a product order, Developer shall notify
     Distributor, and Distributor may either agree to accept later shipment or may
     cancel Distributor's order in whole or in part.

     G.     Distributor agrees that, absent Developer's express written acceptance,
     terms and conditions contained in any product order issued by Distributor for
     Products, other than the number and classification of Products ordered, shall not
     be binding on Developer to the extent that such terms and conditions are
     additional to or inconsistent with those contained in this Agreement.

     H.    Distributor agrees to receive, inspect, and accept shipments made
     pursuant to product orders. Products delivered or offered for delivery in a
     damaged condition shall be rejected and returned to Developer with such
     documentation as may reasonably be required to assert any claims that may lie
     against the carrier causing such damage.

4.   Prices and Payment
     A.     Prices for Products shall be the suggested retail price in effect on
     Developer's Product Price List at the time of receipt of the order from Distributor,
     less Distributor's discount indicated in Exhibit B. The Product Price List in effect
     at the effective date of this Agreement is attached at Exhibit B. Prices are
     quoted based on cost of shipment from Developer's point of manufacture being
     borne by Distributor.

     B.     The Product Prices and discounts set forth in Exhibit B are firm for at
     least (number) months after the execution of this Agreement. After the expiration
     of such period, Developer may, at any time, change the suggested retail prices
     for Products by providing at least (number) days' prior written notice of the
     proposed change. Such new price shall apply to all product orders received after
     the effective date of the change set forth in such written notice.

     C.     Payment shall be due within (number) days of date of the invoice that shall
     accompany such a shipment, with the following exceptions: (1) Payment for
     quantities for the initial product order is due upon execution of this Agreement;
     and (2) payment for quantities ordered with a value exceeding $___________
     shall be made prior to shipment.

     D.    Failure of Distributor to pay any amounts when due shall result in the
     accrual of interest on the remaining unpaid balance at a rate equal to the lesser
     of _____% per annum or the maximum rate allowed by law.

5.   Inspection by Distributor
     A.     During the (number) days following Distributor's receipt of each shipment
     of Products ordered under this Agreement, Distributor shall have the right to
     inspect the Products to ascertain whether they conform in number and
     classification to Distributor's product order, and whether they conform to the
     specifications. If the Products so inspected fail to conform to the product order or
     specifications, Distributor shall notify Developer in writing within such (number)-
     day period and shall inform Developer of the nature of such nonconformity in
     reasonable detail. Failure to so notify Developer will be deemed acceptance of
     the Products received.

     B.     If Distributor gives Developer the notice of nonconformity specified in
     Section 5.A, then Developer shall take such actions as Developer deems
     necessary and appropriate to remedy or cure such nonconformity in the Products
     during the period of (number) days following Developer's receipt of such notice.

     C.     If within (number) days following the receipt by Developer of the notice
     specified in Section 5-A Developer has not remedied or cured the nonconformity
     in the Products, Distributor may return to Developer any Products in such
     shipment that demonstrate material nonconformity. Additionally, if Developer fails
     to take corrective action within the (number)-day period and Distributor
     reasonably believes that Developer is unable to fulfill the terms of this
     Agreement, Distributor may terminate this Agreement by written notice to
     Developer. Distributor shall remain obligated for all Products received and not
     returned to Developer, notwithstanding any assertion by Distributor that any
     Products have failed to conform to the product order or the specifications or any
     termination of the product order.

     D.     If Distributor terminates this Agreement pursuant to Section 5-C, such
     obligation that Developer may have to accept product orders for Products and to
     ship Products to Distributor, and such obligation that Distributor may have to
     submit product orders for Products, shall cease as of the date such termination
     occurs. Notwithstanding the foregoing, Distributor shall pay for all Products
     shipped to Distributor that have not been returned to Developer pursuant to the
     terms of this Section 5 at the price and on the terms provided in this Agreement.

6.   Trademarks: Marking of Products
     A.     Distributor may display Developer's trademarks to identify and market the
     Products only: (1) on business cards and stationery of Distributor indicating
     Distributor is an authorized distributor for Developer; and (2) on the marketing
     materials prepared by Developer and delivered to Distributor relating to the
     Products set forth in Exhibit B. No other use of Developer's trademarks is

     B.     Developer shall mark each Product so that the following items relating to
     the Products may be read by a prospective End User without opening the

            1.     All license terms applicable to End Users;
            2.     All warranties and disclaimers of warranties of Developer; and

            3.    Identification of the hardware and operating system configurations
            on which the Product is designed to operate.

7.   Competitive Products; Exclusivity Commitment
     A       Nothing in this Agreement shall be construed to require Distributor to
     refrain from the distribution of any other microcomputer software, whether or not
     competitive with the Products.

     B.      So long as this Agreement remains in effect, Distributor shall not: (1)
     distribute; or (2) act as an agent or representative of any developer, publisher, or
     manufacturer of microcomputer software program that are functionally
     comparable or intended, by applicable marketing and promotional programs
     directed to such products, to compete directly with the Products.

     C.      Distributor agrees to promote and market the Products to Dealers
     listed in Exhibit E (in addition to other Dealers serviced by Distributor) and
     to use reasonable efforts to keep such Dealers supplied with Products and
     marketing materials adequate to support the promotion of the Products to
     End Users.

8.   Proprietary Protection of Programs
     A.       This Agreement shall not be construed to grant to Distributor any right,
     title, or interest in any intellectual property rights embodied in or associated with
     the Products, or any right to, modify, loan, or lease the Products. Under no
     circumstances shall Distributor decompile the object code portion of the Products
     to a source code version. Distributor shall be authorized only to market and
     distribute the Products in their form and packaging as delivered by Developer in
     accordance with the terms of this Agreement. All use of the Products by
     Distributor shall be subject to the terms and conditions of the End-User License
     Agreement included with each Product.

     B.     Distributor agrees not to loan, rent, or provide access to the Products, for
     a fee or otherwise, to any third party for the purpose of unauthorized copying of
     the Products. Distributor agrees that the act of lending, renting, and providing
     access to the Products, where the unauthorized copying is intended or
     reasonably likely to occur, shall be deemed to constitute contributory
     infringement of Developer's proprietary rights, including copyright and trade
     secret rights in the Products.

     C.    The provisions of this Section 8 shall survive termination of this
     Agreement for so long as the copyright trade secrets a
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