This Software Distribution Agreement (hereinafter
referred to as the "Agreement") is made and effective this ____
day of ___________, 199_ by and between ____________________ (hereinafter
referred to as the "Developer"), and ________________ (hereinafter
referred to as the "Distributor").
Developer has developed certain software
it desires to distribute.
Distributor is in the business of marketing
and distributing software products.
Developer and Distributor desire to arrange
for Distributor to market Developer's software as set forth herein.
NOW, THEREFORE, it is agreed:
1. Distribution of Software.
A. Appointment. Subject to the terms of this Agreement,
Developer appoints Distributor as a nonexclusive distributor for the following
of Developer's software (the "Software"): [Software]. Distributor
shall market copies of the Software supplied by Developer to customers
for use only in the United States during the term of this Agreement. Distributor
shall have no right to make copies of the Software. Distributor shall
not distribute any copy of the Software without Developer's end-user software
license agreement. Distributor will not export any Software outside the
United States. Distributor will use its best efforts to promote, market
and sell the software to dealers, retailers and other resellers.
B. Orders for Copies of Software.
Any and all orders by Distributor for copies of the Software shall be
pursuant to the terms and conditions of this Agreement. Such terms and
conditions shall supersede any additional or conflicting terms or conditions
contained in any purchase order or other communication from Distributor.
Orders must be in writing, delivered in person, by mail, overnight delivery
service or telecopier. Each order shall be for a minimum of [Minimum Order]
C. New Versions. In the event
that Developer releases a new version of any Software product during the
term of this Agreement, Distributor may return, within [Return Period]
after first shipment of the new version to Distributor, any copies of
the old version of such Software product held by Distributor in inventory
and obtain a copy of the new version of such Software product for each
copy of the old version returned by Distributor to Developer. Distributor
shall not have the right to return any copies of the old version that
have been sold by Distributor prior to release of the new version. Distributor
will pay shipping charges both to and from Developer.
D. Returns. Distributor may
return any units of the Software that are delivered with defective media
or damaged packaging or documentation, provided such defects or damage
are not the fault of the Distributor. Distributor may otherwise return
any unopened units of Software during the term of this Agreement provided
that Distributor pays to Developer a restocking charge in the amount of
[Restock Charge] of Developer's then current price for such Software,
and provided that the copies returned by Distributor are current versions
of the Software at the time of such return. Distributor must request and
receive a return of materials authorization number before returning any
materials. [Guarantee of Sale]
E. Suggested Retail Price.
If Developer reduces its suggested retail price of the Software, Developer
shall grant an adjustment for Distributor on any then unsold Software
in Distributor's physical inventory. The amount of the adjustment will
be equal, pro rata, to the amount of change in the suggested retail price.
This adjustment will be provided only in the form of a credit against
later purchases of the Software by Distributor.
F. Marketing Funds. Developer
may agree to provide Distributor with funding for various marketing activities
on a case-by-case basis. Developer recognizes the importance of promoting
its products and will assist Distributor to do so. Reimbursement of marketing
expenditures requires prior written authorization by Developer. All terms
of the marketing agreements shall be specified in the authorizations.
Claims for payment shall be submitted with proof-of-performance and a
copy of the authorization. Developer specifically states, and Distributor
recognizes, that Developer does not offer a CO-OP marketing fund entitling
Distributor to accrue dollars for marketing based upon sales.
A. Prices. For each copy
of the Software ordered by Distributor, Distributor shall pay to Developer
the price set forth as follows: [Distributor Price Schedule]. The prices
shall be subject to change at Developer's sole option upon [Notice for
Price Change] written notice to Distributor. Distributor shall pay the
amount within thirty (30) days of Developer's invoice.
B. Taxes. Distributor shall
pay, or reimburse Developer as appropriate, for any sales, use, excise,
property, or other tax imposed upon the provision of the Software to
Distributor and amounts paid by Developer hereunder. In no event shall
Distributor be responsible for taxes based on Developer's income or
for the privilege of doing business.
3. Term and Termination.
A. Term. The "Initial
Term" of this Agreement shall commence on [Start Date] and shall
continue for a period of [Term Length], unless terminated earlier as
provided herein. Either party may terminate this Agreement effective
upon the end of the Initial Term by written notice to the other at least
ninety (90) days prior to the end of the Initial Term. If not terminated
at the end of the Initial Term, the Agreement shall automatically renew
for successive periods of [Renewal Term] each, unless terminated by
either party at least ninety (90) days before the end of any renewal
B. Termination. This Agreement
may be terminated at any time: (i) by either party if there is a default
of a material obligation which is not cured within thirty (30) days
following notice from the non-defaulting party; (ii) by Developer if
Distributor ceases to function as an ongoing concern or to conduct its
operations in the normal course of business; or (iii) by Developer if
Distributor shall become insolvent or bankrupt or Distributor shall
make an assignment for the benefit of creditors or a trustee or receiver
shall be appointed for Distributor. Except for a termination for cause,
neither party shall be liable to the other or to any other person for
any loss or damage occasioned by the termination of this Agreement as
4. Indemnification of Distributor.
Developer shall be solely responsible for the design, development, supply,
production, validity of copyrights and patents claimed by Developer, and
performance of the Software. Distributor, in case of legal action seeking
remedy from Distributor concerning Developer's warranty, infringement
of copyright, patent, trade secret, or other proprietary right, will immediately
notify Developer by Registered Mail of such action. Developer may, at
its sole discretion, elect to undertake the defense of said action and
will assign its attorney to the case. Developer agrees to indemnify and
hold Distributor harmless from and against any claim, loss, damage, expense
or liability (including attorney's fees and costs) that may result in
whole or in part, from:
A. any infringement or any claim of infringement,
of any patent, trademark, copyright, trade secret or other proprietary
right with respect to the Software.
B. and warranty or product liability claim
with respect to the Software.
EXCEPT AS PROVIDED IN THIS AGREEMENT, DEVELOPER DOES NOT MAKE
AND DISTRIBUTOR DISCLAIMS, ANY WARRANTY, EXPRESS OR IMPLIED, WITH RESPECT
TO THE SOFTWARE INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES
OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. Developer
provides a limited warranty to the end user of the Software as set forth
in the license agreement that accompanies the Software.
6. Limitation of Remedies and Liability.
A. Damages. IN NO
EVENT SHALL DEVELOPER BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL
OR CONSEQUENTIAL DAMAGES (INCLUDING LOSS OF PROFITS) WHETHER BASED ON
CONTRACT, TORT, STRICT LIABILITY, OR ANY OTHER LEGAL THEORY, EVEN IF
DEVELOPER WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
B. Further limitation. In
the event that any disclaimer of warranty or limitation of liability
is found to be unlawful or inapplicable, or to have failed of its essential
purpose, Developer's liability shall be limited to the amount paid by
Distributor for the specific Software copy that caused such liability.
C. Indemnification. Distributor
agrees to indemnify and hold harmless Developer from and against any
claim, loss, suit or damage, including reasonable attorney's fees and
costs, arising out of any failure of Developer to perform any obligation
in this Agreement or to properly deliver any Software to anyone purchasing
D. Reliance. Developer is
willing to license the Software to Distributor only in consideration
of and in reliance upon the provisions of this Agreement limiting Developer's
exposure to liability, such as are contained in this Section 5. Such
provisions constitute an essential part of the bargain underlying this
Agreement and have been reflected in the license fees and other consideration
specified in this Agreement.
7. Maintenance and Support.
Maintenance and support for the Software for the benefit of Distributor
are not provided under this Agreement.
Any notice or other communication under this Agreement shall be deemed
given if delivered in writing to the intended recipient either in person
or mailed, certified or registered, postage prepaid, or by recognized
overnight delivery service, to the intended recipient at the address specified
If to Developer:
If to Distributor:
or such other address as a party may specify
from time to time pursuant to this Section 7.
9. Governing Law.
This Agreement shall be governed, construed and enforced according to
the laws of the State of ________________
10. Final Agreement.
This Agreement terminates and supersedes all prior understandings or agreements
on the subject matter hereof. This Agreement may be modified only by a
further writing that is duly executed by both parties.
Headings used in this Agreement are provided for convenience only and
shall not be used to construe meaning or intent.
If any term of this Agreement is held by a court of competent jurisdiction
to be invalid or unenforceable, then this Agreement, including all of
the remaining terms, will remain in full force and effect as if such invalid
or unenforceable term had never been included.
IN WITNESS WHEREOF, the parties
have executed this Agreement as of the date first above written.